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Contents for the current issue, SEPTEMBER 2023
1. | Tan Yock Lin (1953-2023) Kevin Y.L. Tan [2023] Sing JLS 217
The 7th of July 2023 was a terrible day for colleagues at the National University of Singapore, Faculty of Law ("NUS Law"). It was the day when a dark pall descended upon the Faculty, as we were shocked and stunned by the news that our dear colleague, Yock Lin, had been tragically plucked from our midst in a fatal road accident. Even now, sitting here and writing this, I find his loss unfathomable.
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| 2. | Copyright in the Age of Disruption David Tan [2023] Sing JLS 226
On 14 November 2022, Director General of the World Intellectual Property Organization ("WIPO"), Mr Daren Tang, delivered the keynote address at the Asian Pacific Copyright Association ("APCA") Conference held at the Bukit Timah Campus of NUS Law. The conference was held in hybrid mode, attracting participants from over a dozen countries that spanned Austria to Australia. Co-hosted by the EW Barker Centre for Law & Business and the Centre for Technology, Robotics, AI & the Law ("TRAIL"), the theme of the conference was "Copyright in the Age of Disruption". Over two dozen papers and presentations discussed how copyright law should address myriad disruptive phenomena such as the evolving use of artificial
intelligence, the ascendancy of cultural appropriation concerns, the creation of the metaverse, new communication technologies, NFTs and fast fashion.
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| 3. | Copyright's Making Available Right: Distinguishing Downloads and Streams Under the WIPO Internet Treaties Cheryl Foong [2023] Sing JLS 232
In SOCAN v ESA, the Supreme Court of Canada carved out the making available of durable downloads from the scope of Canada’s communication right, deeming the offering of downloads to be an authorisation of reproduction. Is this adequate protection of the WIPO Internet Treaties' communication right, which does not distinguish durable downloads from ephemeral streams? This article closely considers the Canadian position and highlights the importance of assessing the overall substantive level of protection afforded under national law, rather than relying on labels or focusing on particular protections. It concludes that Canada is likely meeting its obligations under the Internet Treaties, as authorisation in Canada is not dependent on proof of actual downloads and the standard of liability is not prescribed under the umbrella solution. The case is a reminder that the Internet Treaties call for minimum substantive levels of protection, not homogenous protection in form.
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| 4. | Algorithmic Enforcement of Copyright: Approaches to Tackling Challenges Posed By Upload Filters Philipp Homar [2023] Sing JLS 256
It is a widespread phenomenon that online platforms which enable users to upload copyright-protected content use software-based tools that automatically identify and restrict copyright-infringing user uploads based on algorithms - so-called upload filters. The European Union is currently at the forefront of the development to govern upload filters through legislation, both with regard to requiring platforms to filter infringing content (Art 17 of the Directive on Copyright in the Digital Single Market) and with regard to mitigating risks of automated filtering (especially through the newly adopted Digital Services Act). Against this background, this article analyses the European approach to algorithmic enforcement of copyright and compares it with the situation in the United States. After laying out the legal foundations from which the necessity to engage in algorithmic enforcement results, this article focuses particularly on legal approaches to avoiding the restriction of permissible content ("overblocking").
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| 5. | Towards a Reconstruction of the Rule Against Penalties Using the 'Just Compensation' Criterion Moshood Abdussalam and Oladapo Ogidi [2023] Sing JLS 283
This article postulates a two-step hybrid approach in the control of remedial clauses- eg, liquidated damages, forfeiture clauses, deposits, accelerated performance clauses, etc. It restates the imperatives for rethinking the strict enforcement of such terms. The currently prevailing strict approach is premised on the view that conditions prevailing at the time of contracting should shape the enforcement of such provisions. In place of that approach, it is proposed that the award and control of pre-determined remedies be parallel to the default common law rules that govern the judicial exercise for determining damages/compensation. In essence, this article argues for the reinstatement of a 'just compensation' standard in the control of such terms; notably, one that takes account of hindsight knowledge or information.
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| 6. | Trade Mark Law as a Normative Project Graeme B Dinwoodie [2023] Sing JLS 305
Trade mark law is motivated in part by the goal of protecting certain consumer understandings. But courts typically treat such consumer understanding as a pre-determined, relatively fixed, fact to which the template of trade mark law can be applied and from which answers to the relevant legal questions thus inevitably flow. Prof Dinwoodie challenges this approach as descriptively incomplete and prescriptively harmful. He argues that trade mark law should be less fixated on ascertaining, acting upon, and declaring, empirical realities of consumer association and confusion. Instead, courts need more openly - and more fully - to understand trade mark law as a normative project. In this climate, efforts to enhance the quality of factual input to particular trade mark disputes should be a lower priority for trade mark law. And, if over-emphasised in ways that downplay the normative character of trade mark law, such well-intentioned efforts at improved empiricism may even be counterproductive.
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| 7. | Trade Mark Ownfringement Jeanne C Fromer [2023] Sing JLS 342
Trade mark owners have increasingly been acting similarly to those they accuse of infringement or dilution of their marks. They are acting as "ownfringers". They have been engaging in previously unheard-of competitor collaborations, collaborations with businesses in distant spaces, and self-parody. These trends typify how trade mark owners are increasingly behaving like the third parties they pursue for infringement. How should trade mark law think about these new, prevalent behaviours by mark owners? Perhaps it is just par for the course because mark owners have the right to use their marks in commerce in ways that would constitute infringement if done by third parties. Even so, by engaging in ownfringement, trade mark owners are potentially altering the balance or calculus of a number of fundamental aspects of trade mark doctrine. I explore three important doctrinal impacts of ownfringement: on likelihood of consumer confusion, trade mark distinctiveness and self-dilution, and the parody defence.
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| 8. | Constructing a Theoretical Framework For a Rules-Based Approach in BRI Dispute Resolution Jamieson Kirkwood [2023] Sing JLS 369
This article constructs a theoretical framework that sets out the basis for instituting a rules-based approach in BRI dispute resolution. This article is a response to the fact that there have been numerous calls for instituting a rules-based approach in BRI dispute resolution, but there has been little written in terms of laying a theoretical foundation for doing this. In such way, this article fills this gap by analysing what a rules-based approach to dispute resolution means, exploring what the BRI actually is and considering why rules are understood to be necessary in BRI dispute resolution. Although the article principally adds to the ongoing academic discussion regarding the reform of BRI dispute resolution it is also of use to practitioners and policy makers active in this field.
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| 9. | Review Article: On Beauty, Scholarship, and Function - The Lessons From, and Importance of, Legal History in the Development of the Law of Marine Insurance Andrew Phang [2023] Sing JLS 420
A few words of explanation at the outset are perhaps necessary - if nothing else than to explain the apparently cryptic title of this review essay. What in fact began as a somewhat straightforward review of a book on the history of marine insurance took a wholly unexpected turn and morphed into a general essay on the beauty, scholarship and function of legal history as viewed through the lenses of marine insurance. Indeed, in addition to being a magisterial two-volume history of the law of marine insurance, the present work demonstrates - in the most vividly possible way - at least three fundamental aspects (or, more accurately, benefits) of legal history as a whole.
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| 10. | Getting There 'Directly': Closing the Bellingham Loop on S 48O PDPA Eleanor Wong and Stephen Yeo [2023] Sing JLS 439
The Personal Data Protection Act 2012, which governs the collection, use and disclosure of personal data by organisations in Singapore, also establishes a statutory right of private action under s 48O. In light of the Bellingham litigation, this article addresses the questions of: (i) who can avail themselves of the right of action created by s 48O, whether a non-human entity be a "person" under s 48O and, if so, whether such an entity an appropriate beneficiary of s 48O; and (ii) the type of loss or damage s 48O envisages.
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