United Kingdom

Floyd Abrams published an op-ed today in the Wall Street Journal that highlights the impact of foreign law, especially English libel law, on speech in the United States. Abrams notes:   read more »

Giuseppina D'Agostino, a law professor at Osgoode Hall Law School in Toronto, has a new paper coming out entitled "Healing Fair Dealing? A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair Use." Here is the abstract:

As a result of the March 4, 2004 Supreme Court of Canada decision in CCH Canadian Ltd v Law Society of Upper Canada for the first time in Canadian copyright history, the court determined that Canadian law must recognize a "user right" to carry on exceptions generally and fair dealing in particular. This paper compares the Canadian fair dealing legislation and jurisprudence to that of the UK and the US. It is observed that because of CCH, the Canadian common law fair dealing factors are more flexible than those entrenched in the US. For the UK, certain criteria have emerged from the caselaw consonant to Canada's pre-CCH framework and in many ways there is now a hierarchy of factors with market considerations at the fore.

The real differences, however, ultimately lie in the policy preoccupations held by the respective courts, with Canada's top court alone concerned in championing user rights above all other rights. The paper concludes that Canadian fair dealing does not require too much healing but would benefit from some remedies outside (and complimentary to) the law and the courts. While doing nothing does not seem to be the appropriate response, legal intervention as many advocate may not be warranted either. Rather than, or at the very least together with, reforming the law, establishing fair dealing best practices is most promising. The parties directly affected in a specific industry can together develop these guidelines to ultimately aid in clearer and ongoing fairer fair dealing decision-making in the courts. It is here that US initiatives can serve as most fruitful to emulate.

It's nice to see some scholarly attention paid to the differences between the Canadian, U.K., and U.S. approaches to this important subject.

You can download the entire article from the Social Science Research Network.   read more »

Glenn Reynolds over at Instapundit.com reports that a British blogger was recently threatened with arrest for inciting racial hatred. The blogger, who runs a controversial Christian blog and goes by the pseudonym Lionheart, stated on his blog that British police are threatening to arrest him for "stirring up racial hatred by displaying written material" contrary to sections 18(1) and 27(3) of the Public Order Act 1986.

Reynolds recommends that if you're interested in supporting free speech rights -- and you should be if you are reading this blog -- you can contact the British Embassy to let them know that people shouldn't be arrested merely for writing things that the powers-that-be find distasteful.

(Note: Glenn Reynolds is on the CMLP's Board of Advisors.)

Robin Hamman noted yesterday that a number of UK bloggers had their blogs taken down by their ISP following threats of legal action by Uzbek billionaire Alisher Usmanov. According to Hamman:

The bloggers, who were unlikely to have previously heard of or mentioned Mr. Usmanov, were unwittingly caught up in a dispute between Mr. Usmanov and blogger Craig Murray, a former British Ambassador to Uzbekistan. . . . In response, Hundreds of UK bloggers have now rallied round and added buttons showing their support for free speech rights.

Hamman followed up with an interview on the BBC discussing the controversy and the need for legal protection for hosting providers. Unlike the United States, where section 230 of the Communications Decency Act provides immunity to hosting providers -- and other interactive computer services -- for tort claims arising from content provided by third-parties, UK law holds the hosting provider responsible for the statements of users. As a result, you get takedowns like this.