‘Court of Appeal says AI software cannot be listed as patent inventor’

“The Court of Appeal of England and Wales this week dismissed a man’s plea to have his AI system recognized as the inventor of two patents. Stephen Thaler, founder of US-based Imagination Engines, is hellbent on giving intelligent machines the credit he reckons they deserve. He swears that a fancy food container and an emergency flashing light were the brainchild of his neural network model DABUS …” (more)

[Katyanna Quach, The Register, 22 September]

The judgment is reported as Thaler v Comptroller General of Patents Trade Marks And Designs [2021] EWCA Civ 1374 (21 September 2021).

Andrew Higgins, ‘What Price Are We Willing to Pay for the Dream of Equal Justice?’

The injustices wrought by unequal access to the legal system pose a direct threat to the rule of law, yet such injustices are widespread in England and elsewhere. Lawyers regularly criticise governments for a lack of funding for the legal system, but the private market for delivering legal services receives much less scrutiny. A private market for legal resources is antithetical to equal justice because it makes the outcome of cases turn on arbitrary factors such as wealth. The solution, according to Wilmot-Smith in his book Equal Justice, is to socialise the allocation of legal services so that the rich cannot buy the best lawyers, and to prevent them from contracting out of this public system by making private arbitrations unenforceable. This review article argues that Wilmot-Smith’s thesis is persuasive, but there might also be second-best solutions that could deliver greater legal equality at lower cost.

Andrew Higgins, What Price Are We Willing to Pay for the Dream of Equal Justice?, Oxford Journal of Legal Studies, https://doi.org/10.1093/ojls/gqab002. Published: 21 September 2021.

Andrew Burrows, ‘Judgment-Writing: A Personal Perspective’

“This is an updated version of a paper I presented at a seminar for the judiciary in the Royal Courts of Justice in December 2013 entitled ‘Judgment-Writing: An Academic Perspective’. As that title indicates, I was asked at that seminar to examine the question, what are legal academics looking for in a good judgment? At the time, I was Professor of the Law of England at the University of Oxford. Since then, I have written many judgments as a Deputy High Court Judge and, from June 2020, as a Justice of the Supreme Court. In so doing, I have been able to test out in practice some of the ideas that I there put forward …” (more)

Lord Burrows (Justice of the Supreme Court of the United Kingdom), ‘Judgment-Writing: A Personal Perspective’, Annual Conference of Judges of the Superior Courts in Ireland, 20 May 2021.

McFarlane and Douglas, ‘Property, Analogy and Variety’

How should a court respond if a party argues that, because her right to an intangible asset is a property right, the defendant is under a strict duty not to interfere with that intangible asset? Our view is that such a conclusion does not follow from the premise, and the argument is really one that the party’s right deserves protection as it is sufficiently analogous to a right to a tangible asset.

Ben McFarlane and Simon Douglas, Property, Analogy and Variety, Oxford Journal of Legal Studies, https://doi.org/10.1093/ojls/gqaa043. Published: 21 September 2021.

‘A New Perspective on Market Actor Behavior, Motivations and Beliefs’

“In my article ‘Tribes and Temperaments: Two Underappreciated Determinants of Market Actor Behavior, Motivations and Beliefs’, prepared for a volume on Hidden Fallacies in Corporate Law and Financial Regulation, I make two arguments, one narrow and one very broad. The narrow argument is that law and economics does not take tribes or temperaments, as I define them, into account in its analyses of markets and market activity, and that it should. That it does not is easy to demonstrate, as is that it can; the chapter contains many examples, some of which are mentioned below, of market behavior that is far better explained with reference to tribes and temperament than it is without them …” (more)

[Claire Hill, Oxford Business Law Blog, 21 September]

K-Sue Park, ‘Race and Property Law’

This chapter offers an outline for understanding the key role of race in producing property values in the history of the American property law system. It identifies major developments in the mutually formative relationship between race and property in America that made and remade property interests in America through the processes of 1) dispossessing nonwhites, 2) degrading their homelands, communities, and selves, and 3) limiting their efforts to enter public space and occupy or acquire property within the regime thereby established. First, it describes the use of law to create the two most important forms of property in the colonies and early Republic, both of which acquired value and status as property through white ownership and control – namely, enclosed land and enslaved human beings. Second, it addresses the significant shift in the way that race produced property values after the abolition of slavery, and how the anti-blackness entrenched by the slave trade spurred and organized resistance to Black landownership and property rights more generally. Third, it turns to the way the government, after consolidating the national territory through conquest, drew upon the continuing backlash to abolition and widespread desire for racial segregation to remake the infrastructure and the very commodities on offer on the real estate market through its notorious redlining program and establishment of a major secondary mortgage market. In this way, it seeks to show the structural relation between transformations to the property system during these different historical periods and the evolving role of race in its organization, while providing comprehensive citations, in the style of a handbook, to relevant scholarship and primary materials throughout.

Park, K-Sue, Race and Property Law (August 19, 2021) in The Oxford Handbook of Race and Law in the United States (Devon Carbado, Khiara Bridges and Emily Houh eds, Oxford University Press), forthcoming. (2021). Georgetown Law Faculty Publications and Other Works. 2405.

Andrés Páez, ‘Negligent Algorithmic Discrimination’

… This Article proceeds in three parts. The next Part offers some examples of algorithmic discrimination in hiring decisions that have been documented in recent years. Part III explains why the doctrines of disparate treatment and disparate impact are ineffective in the case of algorithmic discrimination. Part IV presents the idea that discrimination generally can be understood as negligence and examines whether this approach can be transferred to the context of algorithmic discrimination. The conclusion suggests another novel way of analyzing algorithmic discrimination.

Andrés Páez, Negligent Algorithmic Discrimination, 84 Law and Contemporary Problems 19-33 (2021).

‘New Directions in Private Law Theory’: UCL Laws, 11-12 November 2021

UCL Laws will host a major international conference on ‘New Directions in Private Law Theory’ on 11 and 12 November 2021. The UCL team, comprising Professor Charles Mitchell, Dr Prince Saprai, Dr Fabiana Bettini, and Mr Martin Fischer, has been awarded funding by the Society of Legal Scholars to run the event as one of its Annual Seminars for 2021. The conference will showcase the work of early career scholars working in private law theory, and give them an opportunity to discuss new ideas and receive constructive feedback from more established academics working in the field … (more)

Metka Potocnik, ‘Book Review: Hayleigh Bosher, Copyright in the Music Industry: A Practical Guide to Exploiting and Enforcing Rights

“Dr Hayleigh Bosher’s Copyright in the Music Industry is the latest addition to numerous titles trying to decipher the complexities of intellectual property (IP) and other rules relevant to the music industry. With specific focus, care for her audience and a practical approach, Bosher joins several other expert attempts wishing to explain IP and other rights to the artists creating the music, or any other non-legal audience. Readers focused on investigating the complexity and detail of the rules further will want to explore the many titles on IP and business of the music industries in the UK and abroad …”

Potocnik, Metka, Book Review: Hayleigh Bosher, Copyright in the Music Industry: A Practical Guide to Exploiting and Enforcing Rights (August 19, 2021). (2021) 6 Wolverhampton Law Journal 102.

Geiger and Bulayenko, ‘Creating Statutory Remuneration Rights in Copyright Law: What Policy Options Under the International Legal Framework?’

Statutory remuneration rights are progressively attracting the attention of policy makers as regulatory tools since they constitute a middle way between exclusivity and free uses. Remuneration rights have the potential to realise the delicate balance between access to and protection of copyrighted works, while at the same time potentially safeguarding the interests of all parties involved in the process of cultural production. Scholars have also increasingly advocated the use of remuneration rights when the enforcement of exclusive rights is hardly achievable. This is particularly the case with regard to addressing infringing mass uses in the digital environment such as streaming or peer-to-peer file sharing, or unlocking the blocking effects of exclusivity in order to foster the reuse of copyright-protected material. In these cases, the use of statutory remuneration rights would help the copyright system to fulfil its basic function and to safeguard important fundamental rights such as freedom of expression. However, despite their attractiveness, the creation of statutory remuneration rights has also some constraints as they need to comply with obligations resulting from international copyright law. Therefore, it is crucial that legislators know exactly what their room for manoeuvre is when using this tool to regulate copyright law. Surprisingly, this policy space remains until now quite blurry. This article attempts to bring clarity to the discussion: it analyses possible ways of creating remuneration rights in the light of international treaty obligations and maps all options. It argues that international copyright law provides far more policy space than often assumed to create statutory remuneration rights, offers a classification of remuneration rights based on their relationship with the exclusive rights, and invites legislators in the future to better use the full range of possibilities when reforming their copyright laws in order to reach more balanced solutions and to enhance the acceptance of the system among citizens.

Geiger, Christophe and Bulayenko, Oleksandr, Creating Statutory Remuneration Rights in Copyright Law: What Policy Options Under the International Legal Framework? (August 30, 2021). Forthcoming in: A Metzger and H Grosse Ruse-Khan (eds), Intellectual Property Ordering Beyond Borders, Cambridge, Cambridge University Press, 2022, Centre for International Intellectual Property Studies (CEIPI) Research Paper No 2021-01.