Workshop 20. 1. 2016

Law and Public Policy PhD Workshop

CeLAPA (Institute of State and Law, Prague) ve spolupráci s Global School of Law (Universidade Catolica Portuguesa, Lisbon)pořádá

Law and Public Policy PhD Workshop

Datum: úterý 26. 1. 2016

Místo: Praha, Lisabon


Coordination: Prof. Axel Gosseries

15h15-15h35 - Radek Píša, PhD. Candidate, Charles UniversityRespondent: Armando Rocha

Why is constitutional review crucial in post-communist countries?Courts are usually perceived (and criticized) as counter-majoritarian institutions, concept coined by (Bickel 1986). Contrary to this, Gerald Rosenberg claimed that US Supreme Court is incapable to bring about social change, since it possesses no power to enforce it (Rosenberg 1993). Rosenberg’s work is one of the inspirational sources to Ran Hirschl, who considers modern politicians to be agenda setters for powerful judicial bodies. In his view, courts enforce largely unpopular economic policies on behalf of the politicians (Hirschl 2006). Hirschl connects this political arrangement with the rise of neoliberal economic policies, most prominently in Israel – where the introduction of constitutional review in early 1990s coincided with radical shift from left and Keynesian doctrines (Hirschl 1998). I would like to argue that he misses the fact that Israel’s society wasn’t actually liberal before this transition (I use liberal in this context simply as caring for rights). In my opinion, this arrangement parallels post-communist world: constitutional review emerging from the lack of genuine right-based discourse (and playing along with the politicians in their agenda as a secondary outcome). I would like to argue that this arrangement has proven itself to be dysfunctional. As a product designed to maintain certain privileges, yet lacking legitimacy gained from past mistakes (US model) or history (German model), the central European model of constitutional review was left without substantial independent function. This situation can lead to direct conflict (Hungarian and, currently, Poland), or the court can be filled with second-rank personalities (Slovakia).

15h35-16h55 - Tito Rendas, PhD. Candidate, Universidade Católica PortuguesaRespondent: Lucie Straková

“To infinity and beyond”? The duration of copyright protectionCopyright-wise, the turn of the year has a special flavor. Since copyright protection expires at the end of the calendar year of the work’s last year of protection, every January 1st a number of literary and artistic works enter the public domain. 2016 greeted copyright-reliant industries with the expiry of copyright in Adolf Hitler’s Mein Kampf and Anne Frank’s Diary in the European Union. Term expiry is, in fact, the most common form of loss of copyright protection. The existing term to the authors’ exclusive rights over their works is thus the intergenerational issue in copyright law.

My presentation will start with a brief tour through the history of the copyright term in the European Union and the United States. In this tour, I will make the trend of copyright term extension palpable. I will then try to show that such an extension lacks a plausible justification by countering the arguments that have been put forward in favor of longer copyright terms. I will argue, moreover, that the current duration of copyright protection is counterproductive: it harms creative production, instead of stimulating it, by limiting the number of works available in the public domain – works that the subsequent creative activity relies on. The public domain is a vital part of the copyright equation and should not be plundered without a robust justification. Absent such a justification, any future attempts to increase the term of protection should be rejected.

16h10-16h30 Lucie Straková, PhD. Candidate, Mazaryk University, BrnoRespondent : Tito Rendas

Should non-commercial use on the Internet be excluded from the scope of copyright collective management societies?The presentation aims to provide some thoughts about relation of collective rights management and the possibility of granting a licence for non-commercial use. As new European directive on collective management of rights states, all the member states have to bring into their law specific provisions giving the right holders the possibility to licence their work for non-commercial use at the same time while they are represented by collective management society. The obligation to allow the author to grant a license for non-commercial purposes, even if the author is represented by a collective management society means that they have to overdo their current system and rethink their usual reluctance in case of author’s willingness of granting a non-commercial license. Nowadays in this case the author is facing a risk of penalisation by his collecting society. This provision is mostly targeted to online works so the question is whether managing this area by collecting society is appropriate and necessary.

This contribution will present examples of non-commercial licensing and then will try to respond the question, whether we actually need collective management societies for the non-commercial use on the Internet. I would like to defend the position that we don't need collective management societies for non-commercial licensing. It's economically ineffective, there might be a need for creation a huge evidence system, and also it would administratively demanding, although new directive wants the process to be as simple as possible for the author.

16h30-16h50, Armando Rocha, PhD. Candidate, Universidade Católica PortuguesaRespondent: Radek Píša

Private Actors, Climate Change and the Law of the SeaClimate change is the defining issue of our time, and certainly the most significant challenge for current marine environmental law. At the international level, several instruments and policies have been adopted but have failed to provide for a proper protection of the marine environment. The reason for this failure regards the “marine environmental tragedy” that States are living in: no one has an incentive to change its policies and behaviours unless others change theirs as well. One option (yet not sufficient per se) is to equip private actors with subjective environmental rights and specific mechanisms of enforcement of these rights. The virtue of bringing private actors into the fight for the preservation of the marine environment lies in the fact that they can more clearly articulate concerns with marine environment, since they are less concerned with short-term goals (as elections, or the state of diplomatic relations) and, as such, might be the most appropriate representatives of future generations.