正在加载图片...
statements of what may or may not be done. Laws that fail this test are failures overall. UK copyright law may fast be going down this route, but again this has little to do with the inspiration for or nature of the law being implemented Structural awkwardness. Conceivably, the injection of civilian notions into a common law statute may create structural difficulties, so that, like oil and water, the two elements do not mix but just Australias Copyright Law Review Committee took this view in 1988 when a majority of its members recommended against the introduction of authors' moral rights for a number of reasons including that such rights were alien to 'a common law system. The proposition was demonstrably nonsensical since India, Israel and Canada had lived with statutory moral rights for some time without most of their common lawyers suffering any undue mental disturbance (10) The argument totally collapsed after the UK in 1988, copied by New Zealand in 1994, introduced some, albeit insipid, moral rights provisions into the copyright law. Australia more recently has ad a change of heart and now too is falling in line with its moral right obligations under the Berne Convention That the Australians were wrong, and that common law and civilian traditions may co-exist practicably in a single law is demonstrated in various jurisdictions. One such case is Canada Canada's copyright law has been amended over the last dozen years in a way that is deliberately intended to accommodate Canadas civilian and common law traditions as well as bilingual lawyers operating in either mode. Like other federal laws, the Copyright Act is drafted in both French and English, with the respective versions reflecting civilian and common law drafting conventions. Both texts are equally authentic and are commonly compared to resolve ambiguity Both common law- and civil law-trained judges sitting in provincial and federal courts cite and rely on precedents from either tradition in interpreting the Act, although with sometimes surprising results (11) But then the surprises are no greater than, or different from, those sometimes caused piece of legislation In principle, therefore, no cogent reason exists to prevent a single, even unilingual, law from accommodating both common and civil law traditions without creating undue strain on either Legal complexity. The implementation of some European Directives may nevertheless involve complexities arising from the attempted imposition of civilian notions on to a common law template. The Database Directive(1996)may provide such an example. (12) The Directive's purpose was to harmonise different standards of protection for electronic databases The UK's and Ireland's low common law standard of originality allowed prosaic databases(e.g telephone directories)to gain the standard long-term protection granted to literary works. The same item might be protected elsewhere in Europe under principles of unfair competition but not copyright, at least in the majority of states that demanded either some, or some substantial intellectual creativity for copyright to arisestatements of what may or may not be done. Laws that fail this test are failures overall. UK copyright law may fast be going down this route, but again this has little to do with the inspiration for or nature of the law being implemented. Structural awkwardness. Conceivably, the injection of civilian notions into a common law statute may create structural difficulties, so that, like oil and water, the two elements do not mix but just co-exist uneasily. Australia's Copyright Law Review Committee took this view in 1988 when a majority of its members recommended against the introduction of authors' moral rights for a number of reasons, including that such rights were 'alien' to 'a common law system'. The proposition was demonstrably nonsensical since India, Israel and Canada had lived with statutory moral rights for some time without most of their common lawyers suffering any undue mental disturbance.(10) The argument totally collapsed after the UK in 1988, copied by New Zealand in 1994, introduced some, albeit insipid, moral rights provisions into the copyright law. Australia more recently has had a change of heart and now too is falling in line with its moral right obligations under the Berne Convention. That the Australians were wrong, and that common law and civilian traditions may co-exist practicably in a single law is demonstrated in various jurisdictions. One such case is Canada. Canada's copyright law has been amended over the last dozen years in a way that is deliberately intended to accommodate Canada's civilian and common law traditions, as well as bilingual lawyers operating in either mode. Like other federal laws, the Copyright Act is drafted in both French and English, with the respective versions reflecting civilian and common law drafting conventions. Both texts are equally authentic and are commonly compared to resolve ambiguity. Both common law- and civil law-trained judges sitting in provincial and federal courts cite and rely on precedents from either tradition in interpreting the Act, although with sometimes surprising results.(11) But then the surprises are no greater than, or different from, those sometimes caused by judges interpreting any piece of legislation. In principle, therefore, no cogent reason exists to prevent a single, even unilingual, law from accommodating both common and civil law traditions without creating undue strain on either. Legal complexity. The implementation of some European Directives may nevertheless involve complexities arising from the attempted imposition of civilian notions on to a common law template. The Database Directive (1996) may provide such an example.(12) The Directive's purpose was to harmonise different standards of protection for electronic databases. The UK's and Ireland's low common law standard of originality allowed prosaic databases (e.g., telephone directories) to gain the standard long-term protection granted to literary works. The same item might be protected elsewhere in Europe under principles of unfair competition but not copyright, at least in the majority of states that demanded either some, or some substantial, intellectual creativity for copyright to arise
<<向上翻页向下翻页>>
©2008-现在 cucdc.com 高等教育资讯网 版权所有