Here’s a paper by me on the European Convention on Transfrontier Television. Not perhaps the most familiar of legal instruments, but I promise you that it is a story full of mystery and excitement. The background to the work is that the Council of Europe has (had?) a convention on broadcasting, which came out of a great deal of interest in the subject in the 1980s. (The Television Without Frontiers directive of what was then the EEC emerges from the same period). However, after the EU revised its law (the Audiovisual Media Services Directive), the Council tried to do the same.

What happened next took me a long time to unpick (unpack?) and involved a lengthy FOI process with the UK government, a (fortunately more straightforward) access to documents request to the EU, research on the EU’s external powers, and quality time with Council of Europe minutes. And then I presented it (to three different audiences), and had some wonderful colleagues volunteer to read it and give detailed comments.

This version (the ‘Accepted Version’, on SSRN) appears in the Edinburgh Law School Working Paper Series.

Death of a Convention: Competition between the Council of Europe and European Union in the Regulation of Broadcasting

If you have access via, for example, a university library, the published version is available here, in volume 5(1) of the Journal of Media Law.

This article considers a dispute between the European Union and Council of Europe regarding their respective roles in the broadcasting field, so as to explain and assess its relevance for the development at the international level of media law and policy. The dispute is a long-running one and dates back to the adoption of the first EEC Directive and Council Convention on this subject in 1989. It is argued that the expansion of the scope of EU broadcasting law and the consolidation of the European Commission’s role in external affairs left little room for the Council to continue to exercise influence over the regulation of the electronic media in the way it has done for some time. The exact nature of the dispute between the institutions, and the response of a vocal member state, is ascertained through consideration of published minutes and internal correspondence, set in the context of doctrinal and political developments. The article concludes with analysis of possible future actions for the Council.


On the map

When we were both at UEA Law School, Prof. Mathias Siems (blog | web | @siemslegal) and I started working on an article on legal research – seeing it as having affinities with practical, humanities and social science approaches.  We presented it at UEA and Mathias also presented it at a number of other fora. It continued after both of us moved on – Mathias to Durham and me to Edinburgh – and it has now been published in the Cambridge Law Journal.  Complete with charts and diagrams (including a ternary plot we are particularly attached to), and for those who like such things, our data is published in an online annex.  We considered the question from a number of angles, including review of literature (on legal education, methodology and related issues), across different jurisdictions, data (which we collected) on the faculty structures of law schools in the UK, analysis of the role of research councils and associations, and a pilot survey on self-identification of research methods.  When I’ve spoken about it (e.g. at breaks in conferences!), people seem interested, so I hope you enjoy the final result.

That result is the article, Mapping Legal Research (2012) 71 Cambridge Law Journal 651.  A slightly earlier version is available on SSRN (without charge), with the annex included in the file: get it here.  And finally, the abstract:

This article aims to map the position of academic legal research, using a distinction between “law as a practical discipline”, “law as humanities” and “law as social sciences” as a conceptual framework. Having explained this framework, we address both the “macro” and “micro” level of legal research in the UK. For this purpose, we have collected information on the position of all law schools within the structure of their respective universities. We also introduce “ternary plots” as a new way of explaining individual research preferences. Our general result is that all three categories play a role within the context of UK legal academia, though the relationship between the “macro” and the “micro” level is not always straight-forward. We also provide comparisons with the US and Germany and show that in all three countries law as an academic tradition has been constantly evolving, raising questions such as whether the UK could or should move further to a social science model already dominant in the US.

Artificial intelligence, competition – Monday plugging

(1) Supported by CREATe, here’s a fascinating workshop on artificial intelligence and the law, organised by my Edinburgh colleague Prof. Burkhard Schafer:

Ever since Larry Lessig’s proposal to understand “Digital Rights Management” as a form of regulation through code, the field of copyright in the digital economy has opened up a new field of research questions for Artificial Intelligence and Law. How can we represent in more intelligent and semantically richer ways legal concepts that ensure that all, and only, lawful use can be made of digital objects such as film clips or music tunes? How can Information Retrieval support e-discovery in IP litigation? How can we support through technology creators and digital businesses to manage their IP rights, or to use third party material in a law-compliant way? These are just a few of the questions that offer new and exciting applications for artificial intelligence in a legal context.

The call for papers closes this week, so do get in touch; the workshop itself is in December.  All of the details are available here.

(2) My former colleagues at the ESRC Centre for Competition Policy have a good opportunity for someone about to complete a PhD or with one recently in the bag – a one-year postdoctoral fellowship at a leading interdisciplinary centre (law, economics, business, political science) for academic research on competition and regulation.  Even for someone who only scraped the surface of CCP issues during my time there, it was a very vibrant, provocative group to work with – and if your interests are within the Centre’s research programme, it would be a pretty great chance to immerse yourself in relevant academic activity:

The Centre is a focus of research into Competition and Regulation across a range of disciplines, and welcomes applications in the area of competition or regulation policy from candidates with a strong background in competition law, industrial economics, or Political Science related to competition policy or regulation. Post doctoral fellows are expected to contribute to the Centre’s research individually and to develop joint research with other Centre members.


PSA: Hibernian Law Journal 2013

With permission, here is a recent email I received from the editors of the Hibernian Law Journal.  You can contact the journal via email.

Established in 1999, the Hibernian Law Journal is a legal journal co-ordinated by trainee and qualified solicitors. Its multidisciplinary focus facilitates detailed argument and discussion on a wide range of topics such as e-commerce, environmental law, the European Convention on Human Rights, intellectual property, public private partnerships, criminal law, child law and financial services law. All legal topics of domestic, European and international law are considered provided that they are relevant in an Irish context.

The Editorial Committee is now accepting submissions for the 2013 edition. The Hibernian Law Journal offers an excellent opportunity for legal scholars to have their work published in an academic forum.

The following guidelines apply to submissions:

  • Length should be between approximately 5,000 and 15,000 words.
  • The article must not have been published elsewhere, although the article may be a thesis which is bound and catalogued in a university library.
  • The topic should be thoroughly researched and footnoted.
  • Articles may be on any legal topic of interest to the author.
  • Articles are due by 31 October 2012 (although exceptions may be made in individual circumstances).


Neither fish nor fowl: video games and the law

Last month’s decision of the US Supreme Court in Brown v Entertainment Merchants’ Association (PDF) (formerly Schwarzenegger v VSDA) has attracted a lot of attention.  For some academic background on the story leading up to the case, see Rousse’s thorough ‘Electronic Games and the First Amendment’ (SSRN), or my own piece of last year, ‘The regulation of video games: past, present and future‘.  All the filings in the case are available via SCOTUSblog.  This blog post, written in honour of what was apparently Video Games Day in the US last Friday, brings you some comments of my own – bits of this have appeared previously in a nice piece by Ben Maxwell on Edge Magazine’s website, available here.  I’ve used the excellent coverage of press statements by various parties at GamePolitics.com for many of the added links.

The most significant thing about the decision to strike down California’s law on the sale of video games to under-18s was how clearly it was a First Amendment case;  the court was particularly firm in arguing that games were protected in full by the First Amendment.  Scalia (for it is he who writes the majority opinion) goes to great length to compare video games with other forms of expression (from comic books to movies), and even highlights the degree of gore found in the clearly-acceptable Snow White, Hansel and Gretel  and Cinderella, not to mention Homer’s Odyssey, Dante’s Divine Comedy and Golding’s Lord of the Files.  The interactivity of good fiction is used to dismiss the claim that interactive games deserve special legal attention.  To some extent Breyer’s dissenting opinion answers this (although see the Citizen Media Law Project’s blog’s puzzled face at how Breyer feels about the First Amendment), as does aspects of Alito’s concurrence (which reads more like a dissent, and anyway Scalia has four votes as well as his own (from the ‘liberal’ wing!) already, so a majority without the separate opinion).  (Thomas also writes a dissent, but it’s about the lack of constitutional rights of under 18s as a broader principle).

Not only does this confirm that games are being taken seriously at the highest legal levels, it also placed a heavy burden on California to justify the restriction.  With this in mind, the court was not persuaded in the slightest by the evidence put forward regarding a link between gaming and aggression, which must come as a disappointment to those who have been arguing these theories for some time.  The Empirical Legal Studies blog has a good piece on the evidential issues.  While the need to be aware of specific issues for under-18s was noted, even this was not enough to justify the intervention.  However, it’s interesting to consider whether there is a gap opening up between the approach of the court to sex and to violence (or indeed to language); the fact that the decision to hear Fox v FCC in 2011/12 (this time on First Amendment grounds alone; last time the focus was on administrative law) was announced on the same day does whet the appetite.

In the US, the decision means that the self-regulatory system (the ESRB) will continue to be the main form of video game regulation for some time, and other states that had considered following California’s lead will probably cease their efforts.  The ESRB pointed to the decision as an endorsement of its system, although there were some harsh words in concurrence and dissent regarding the effectiveness of the labelling system.  I was particularly interested to see the response of the State Senator who proposed the original legislation, Leyand Yee, who focused on the corporate power of the games industry being able to continue unchecked.  I don’t agree with a lot of Yee’s points in the press release, nor with separating video games from other forms of protected expression, but there is a point about accountability and indeed power when the anti-regulation industry is happy to support and fund regulation as long as it is the regulator.

Meanwhile in the UK, we already have a mixture of self-regulation and statutory control.  Most games are exempt, while some (either on the grounds of content – gross violence, etc – or format – significant video content) are presently classified by the BBFC under the Video Recordings Act.  Changes are on the way though (as discussed in my 2010 piece), with two simultaneous amendments to the VRA – the extension of statutory regulation to a wider range of games, and the possibility of designating a separate body for the classification of video games.  Taken togther, this will mean the use of the (existing and non-statutory) Europe-wide PEGI system for statutory classification in the UK, once the relevant orders (envisaged by the Digital Economy Act) are passed.

The High Court has already had one opportunity to consider video games, in a 2008 judicial review of the decision of the Video Appeals Committee (itself an appeal against a BBFC refusal to classify) regarding Manhunt 2, [2008] EWHC 203 (Admin).  On that occasion, the Court found that the VAC was not interpreting the ‘harm that may be caused to potential viewers’ provisions of the Video Recordings Act (as amended) correctly.  The ECHR’s concept of harm was mentioned, albeit briefly.  In future cases, one imagines that the detailed findings of the American courts may be useful (albeit of persuasive value only and subject to the usual concerns around the First Amendment in non-US courts).  The impact of a regulatory decision on the right to freedom of expression as contained in the Human Rights Act is clear.  Of course, the BBFC already states that it takes the HRA into account (alongside other statutory provisions) and one assumes that this will continue under the Video Standards Council for PEGI.  The VSC should declare, immediately on taking up its duties, that it will act as if the Human Rights Act applies to it (which it most likely does) and it should go about its business in a responsible fashion, including asking to be subject to the Freedom of Information Act and publishing its decision-making and appeal procedures.

UK developers may be relieved that they do not have to deal with a California-only system as there are already a number of different systems in use around the world, although they will still need to be aware of differences between the ESRB (US) and PEGI (European) systems of classification.Of course, Germany remains outside PEGI, and Australia remains a major ‘market’ for games with a standalone system for classification, which – in essence – has a ‘top category’ of suitable for 15 and above, which means that games classified for over-18s in other jurisdictions may not be acceptable in Australia.  This has been under review for some time.

SCRIPTed 2009: Internet internet

Three presentations in this parallel session.

The first was my own, “Law in the Last Mile: Three Stories of Wireless Internet Access”. I will make the paper available shortly. I write about the legal restrictions and risks associated with the sharing of Internet access through wifi, the objections to municipal or community wifi systems, and touch on the ‘white spaces’ Internet access proposals. The bulk of the paper deals with the first, looking at what I argue is the inappropriate use of criminal sanctions against users of open wireless access points and the tools that discourage users from sharing. I believe photos were taken of the special interactive element, which I’ll leave as a surprise for the time being.

The second presentation was given by Anniina Huttunen on behalf of a research group at Helsinki, “Cooling-Off the Over-Heated Discussion of Consumer Digital Rights Discourse by Extending the Cooling-Off Period to Digital Services”. They take as a starting point the problem that there is a high level of protection for physical goods, but almost non-existent for digital services. Consumers are more empowered than ever, and the Facebook user revolt is an example of this, but what is the position of online purchases of software? There is the familiar cooling-off period in EU law – no penalties and no reason needed – for situations like doorstep, time sharing and distance selling. The case study is on software sold as downloaded data. Referring to the revision of the consumer acquis: 34th recital, data files downloaded during cooling-off period not to be included, unfair to allow cooling-off when service enjoyed in full or part. At the moment, many providers have a return policy (well hidden), and also ‘lite versions’ available, or restrictions on return (i.e. download for a second time). The pros of allowing cooling-off are allowing testing of technical and contextual compatibility; no unreasonable cost (physical return) and no wear and tear (so no need to re-sell the product at a lower price), but the cons are the expense for the developer, the design consequences, and seeming to make unauthorised use easier.

The final presentation was Scott Boone’s, ‘Why Study Virtual Worlds‘? It was a report on his own efforts but also evangelical – so that we can consider the advantages. There’s some cynicism – ‘this generation’s D&D’, also critiques that it’s just a fad/hype. But VW give us a means to study possible futures. Borrowing from the discipline of Future Studies, look at simulation gaming (formerly operational gaming). Do things that we can’t do with a real world in terms of understanding scenarios. VWs have a unique set of features and practices, and indeed more focused than the Internet taken as a whole. Already in use are 3D as user interface; what sorts of benefits do we get? and the ‘future of money’ (note disappearance of fiscal currency and privatisation of money). The focus of the paper was then on five potential outcomes of studying virtual worlds: (A) fully realised third paradigm of computing: (1) mainframe/client, (2) personal computing, (3) ubiquitous/pervasive : entirely computer-mediated ‘universe’?; (B) widespread distribution of property without relinquishment of control – do we have emerging issues here – cars on the cellphone model, control separated from use; (C) (nearly) perfect DRM for media distribution – see what the market does; (D) software designed for universal connectivity; this will be a different authorisation, practice etc. Look at business models, EULAs etc (E) augmented reality (though how do we do this without putting in all the variables?) In questions, Boone clarified that his focus was on studying virtual worlds as they currently exist, rather than creating simulations in future virtual worlds (though this too is interesting).

This is the last of my blog updates on the SCRIPTed conference at the University of Edinburgh. Remember, the full list of papers is available here. I will return to the themes of the conference (including the keynote by Prof. Bartha Knoppers) in a later post, and hope that you have enjoyed these fairly rambling updates. There will be one final session that, unfortunately I will miss most of for travel reasons, featuring Lilian Edwards, Andres Guadamuz and TJ McIntyre, which I’m sure will be excellent.

SCRIPTed 2009: A Word from WIPO

Slightly delayed live blogging (handwritten notes and laptops) from the SCRIPTed conference in Edinburgh: programme here. All errors are mine. Comments from me in square brackets.

The first keynote speaker is Antony Taubman (Director, Global IP Issues Division, WIPO), with a remarkably upbeat assessment of the field.. While his topic was the resonant ‘Centripetal and Centrifugal Trends in International Governance of IP‘, the focus of the talk was the role of traditional knowledge (TK) in the international IP system. He commenced with some general coments on the relationship between the various institutions (not just the ‘worlds in collision’ of WIPO and the World Trade Organisation, but others such as the World Health Organisation. There are various relationships, such as between ‘old’ and ‘new’ worlds, or approaches based on indigenous rights vs commodification. There have been fundamental shifts in international IP, at the time of TRIPS but happening again now – this is a sign of success in terms of the system. In the case of TK, he traces an evolution of TK as resistance to conventional IP, through a point of pressure for reform, to a true globalisation or reconceptualisation.

The bulk of the presentation was a discussion on what developments in TK mean:

(a) Empirical, e.g. more activity from developing countries, patents based on TK, even the current International Patent Classification having new, more appropriate categories [my thought: this is a very provocative and controversial definition of success]
(b) Jurisprudential, e.g. work on new or improved understanding of concepts in IP law like innovation and person skilled in the art, which can be different in contexts such as patent review
(c) Negotiations, where nations include aspirations re TK as part of their approach to WIP and others
(d) Development – WIPO development agenda, UN Declaration on the Rights of Indigenous People article 31 as a collective right – ‘an international soft norm’ [aren’t all norms quite squishy?] – the “trade and” approach (trade and – cultural, environmental, HR, political – TK a good example of this trend). Gives the illustration of NGOs etc opposing particular patents as an assertion of cultural integrity.

A general reflection from Taubman: who ‘owns’ international IP normsetting; what is the benchmark for ‘legitimacy’; debate on collective rights (which these reforms must engage with) is controversial even within international HR law alone – what is the purpose of such normsetting, a ‘global IP law’, administrative convergence, or boundary-setting/dispute settlement? Will we see small, selective regimes (with like-minded countries) before adoption in international mainstream.

Parting shots: choice of forum? how do we like trade and IP law (& ethical idea: fair, legitimate trade/unfair competition – cf Paris Convention article 10bis)? Is legitimacy defined through formal structures or is it just a framework? Are worlds colliding ore ‘are regimes remixing’? [a very appropriate phrase] – an ’emerging multifaceted multistakeholder galaxy of jurisprudence’, with TK being very useful in bringing a sustainable approach to light.