LSPI

Presenters

Bonnici, Jeanne Pia Mifsud and Choong, Kartina (UK): Access to the Health Records of Deceased Patients: Why the Law is in Need of Review

Cheliotis, Giorgos; Chik, Warren; Guglani, Ankit and Tayi, Giri Kumar (Singapore): Taking Stock of the Creative Commons Experiment, Monitoring the Use of Creative Commons Licenses and Evaluating Its Implications for the Future of Creative Commons and for Copyright Law

Lehloenya, Michael (South Africa): The Failed SACU-USA Free Trade Agreement in Hindsight: A Lost Opportunity or Disaster Averted?

Mendis, Dinusha (UK): Bridge over Troubled Waters: Bridging the Digital Divide – A bane or boom for right holders?

Nel, Sanette (South Africa): Censorship in cyberspace: To censor or not to censor— that is the question

Oguttu, Annet and Sebo Tladi (South Africa): The Challenges E-commerce Poses to the Determination of a Taxable Presence: The “Permanent Establishment” Concept Analysed From a South African Perspective

Saurombe, Amos (South Africa): Regional Integration Agenda for SADC “Caught in the winds of change”: Problems and Prospects.

Serrano, Katharina Anna (UK): Economic Partnership Agreements: Machiavellian instruments of EU Trade Policy or Samaritan development tools?

Sibanda, Omphemetse (South Africa): TRIPs Flexibilities and Frameworks for Access to HIV/AIDS Medicine in Botswana, Kenya, and South Africa: A Tale of Positives and Negatives

Access to the Health Records of Deceased Patients: Why the Law is in Need of Review by Jeanne Pia Mifsud Bonnici and Kartina A. Choong, University of Central Lancashire.
	Dr Jeanne Pia Mifsud Bonnici is a Senior Lecturer at the Centre for Law, Information and Converging Technologies at the University of Central Lancashire. She is currently Course Leader for the new LLM in Law, Information and Converging Technologies. She holds a Doctor of Laws degree from the University of Malta, a Master of Science degree in Cognitive Science from the University of Birmingham and a PhD from the University of Groningen. Her areas of expertise are data protection, privacy and freedom of information and Internet regulation.
	Dr Kartina A. Choong is a Senior Lecturer at the University of Central Lancashire where she is also the Course Leader for the LLM in Medical Law and Bioethics. She holds a PhD in Medical Law from the University of Manchester and Masters degrees in Medical Ethics (Manchester), Applied Social Research (Manchester) and Islamic Studies (Leeds). She was called to the Bar of England and Wales in July 1995 by the Honourable Society of Lincoln’s Inn and obtained her LLB from the University of Cardiff.
Abstract A glance at the cases that come before the UK Information Commissioner’s Office (ICO) in the period between 2005 and 2008 immediately shows that a consistently high number relate to access to the health records of deceased patients. What accounts for this interesting state of affairs? This paper aims to demonstrate that the law regulating this increasingly important area is a patchwork of case law, statutes and professional guidelines that do not always lend themselves to a congruous and seamless amalgamation (e.g. the Access to Health Records Act 1990, the Freedom of Information Act 2000 and the Guidance on Access to Health Records issued by the General Medical Council and the British Medical Association). This has in turn resulted in the need for creative interpretation and at times legal gymnastics on the part of the ICO and medical professionals. Similar issues can also be traced in different European countries. We argue that in an age where allegations of medical negligence are proliferating (and access to the health records of the deceased could help confirm or dispel suspicions of wrongdoings leading to the death) and where genetic information about a deceased relative could offer valuable support to a living patient’s preventative care and treatment plans, the law regulating access to the health records of deceased patients in the UK can no longer afford to be unclear and confusing. There is, therefore, an urgent need for review.
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*Taking Stock of the Creative Commons Experiment, Monitoring the Use of Creative Commons Licenses and Evaluating Its Implications for the Future of Creative Commons and for Copyright Law* by Giorgos Cheliotis, Warren Chik, Ankit Guglani (Singapore Management University and Giri Kumar Tayi (SUNY).
	Warren Chik ( LL.M. International Business Law, University College London (Merit); LL.M. International & Comparative Law, Tulane University (Distinction); LL.B., National University of Singapore (Second Upper Honours ) is an Assistant Professor at the Singapore Management University. He is a member of the Law Reform Committee of the Singapore Academy of Law, and the Executive Director of the International Law Society of Singapore. Warrek was the Deputy Public Prosecutor, Attorney-General’s Chambers, from 1996 to 1998 and the State Counsel (International Affairs), Attorney-General’s Chambers from 1998 to 2003 . He is a recipient of various awards and scholarships such as the following: International Law Commission Scholarship, International Law Commission, United Nations, Genève, Switzerland, 1999; British FCO (Chevening) Scholarship, Foreign & Commonwealth Office, United Kingdom, 2003; Certificate of Distinction in International Commercial Arbitration, World Arbitration and Mediation Report, Juris Publishing, Inc. & Tulane Law School, 2000 ; CALI Excellence for the Future Award in International Commercial Arbitration, National CALI Institute & Tulane Law School, 2000; and the CALI Excellence for the Future Award in Transnational Commercial Litigation, National CALI Institute & Tulane Law School, 2000
Abstract We provide an analysis of the use of Creative Commons (CC) licenses, an approach to licensing creative works which has become very popular among authors who wish to relinquish some of the exclusive rights granted by Copyright Law. We provide data demonstrating the popularity of CC, examine which specific license types within the CC framework are most popular, and then identify contributing factors for the relative popularity of some of the license types: individual author incentives, the consistency and aims of the online communities which adopt CC as a licensing model, the underlying medium (text, photography, audio, video or interactive content), the intended use of the work, as well as the sociopolitical, legal and economic background of the jurisdictions where the works are being produced. We show that the spread of the licenses is global and encompasses both developed and developing nations with varied cultural and historical backgrounds, which we claim is indicative of a general social shift towards more open collaboration and the rise of a new global consciousness of sharing and participation across national borders. By examining the relationship between piracy rates and license adoption we find only weak support for the common assumption that a relatively lax or critical view on the part of the population towards intellectual property law is providing fertile ground for licenses like CC which offer a more liberal legal alternative. Only an analysis of the complex legal, economic and geopolitical background of each jurisdiction seems to yield plausible explanations for the observed differences in licensing across jurisdictions. In conclusion we examine to what extent copyright law and policy should be informed by the needs and choices of this new generation of authors.
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*The Failed SACU-USA Free Trade Agreement in Hindsight: A Lost Opportunity or Disaster Averted?* by Michael Lehloenya, University of South Africa.
	Mr. Michael Lehloenya is a senior lecturer in corporate law at the University of South Africa, in Pretoria, South Africa. He was previously a lecturer at Rhodes University and the University of the Free State, both in South Africa. He has also worked as a magistrate in Lesotho. Mr. Lehloenya holds an LLM (in international trade law) from the University of Pretoria and is studying toward his LLD with the University of the Free State. He has published number of articles on both international trade law and corporate law.
Abstract Called off while still under negotiation, the likely impact of the failed SACU-USA Free Trade Agreement (FTA) will probably never be known for sure. Diverse opinions abound regarding the possible benefits and disadvantages of this would-be pioneering pact between a developed country and a group of developing countries. It is argued in this paper that there is no clear-cut answer to this complex question and that the implications of the agreement would depend largely on its specific content and the extent to which it accommodated the interests of all concerned. To determine how the agreement would have affected SACU in particular, several existing FTAs between the USA and other countries, all of which bear striking similarity, are examined. The paper also explores the significance of SACU’s refusal to endorse what it perceived to be an unfavourable agreement and what this means for the future of trade between Africa and the West.
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*Bridge over Troubled Waters’: Bridging the Digital Divide – A bane or boom for right holders?* by Dinusha Mendis, University of Central Lancashire.
	Dr. Dinusha Mendis is a Lecturer in Law at the Centre for Law Information and Converging Technologies, University of Central Lancashire. Dinusha studied law and holds a LL.B. from the University of Aberdeen; LL.M. from the University of Edinburgh; PgDL from the Nottingham Trent University and PhD from the University of Edinburgh. Dinusha gained an insight in to the practice of Intellectual Property law whilst working for the IP law team at Shepherd & Wedderburn Solicitors in Edinburgh. In October 2001 she was Called to the Bar of England & Wales and is a member of the Honourable Society of the Middle Temple Inn, London.
Abstract In recent years much research has been carried out to eradicate the digital inequality between the developed and developing countries. Whilst this has been the focus of policy makers in relation to the developing world, an equally important and pressing issue has faced the developed world as a result of new technologies. One of the most remarkable features of the new technologies is that they have made it easy and natural for large numbers of people to violate the law, a concern which has been voiced by the music industry repeatedly in the last few years. More recently, Internet Service Providers (ISPs) in the UK have come under immense pressure from the British Phonographic Industry (BPI) to ‘police’ the Internet and to disconnect people who ignore requests to stop sharing music. However ISPs do not believe that it is their job to be Internet policemen. This paper will argue that whilst the digital divide needs to be bridged, especially in light of education, commerce, e-commerce, trade and health generally, there needs to be a certain amount of awareness of the problems which can arise in the developing world as a result of new technologies. Already in certain countries, piracy is rife and with access to new technologies, statistics show that it has increased. To highlight this fact, the paper delves in to a couple of case studies drawn from Sri Lanka and India. Whilst the music industry has taken harsh steps in UK and USA, the question remains to be asked about the rights of the actual creators when the issue arises from the developing world. Should the right holders be worried about digital piracy in developing countries or are they content to almost turn a ‘blind eye’ to piracy as the percentage of those involved in piracy in these countries is significantly lower than for example in Europe or USA. Whilst this paper will attempt to answer the above questions amongst others, it will also consider a system - an alternative compensation system – which was introduced by William W. Fisher III. This paper builds on Fisher’s proposed compensation system and adapts it particularly for Internet users in the developing world, whilst at the same time ensuring that right holders can also benefit from the ‘boom’ of new technologies in such countries.
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*Censorship in cyberspace: To censor or not to censor— that is the question* by Sanette Nel, University of South Africa.
	Sanette Nel (BLC, LLB, LLM, LLD) is Professor of Law at the University of South Africa, a member of the Unit for Medicine and Law and Co-director of the Certificate Course in Medicine and Law. She is co-author of Cyberlaw@SA: The Law of the Internet in South Africa, regularly publishes and delivers papers (at national and international conferences) on media law, Internet law, aspects of environmental law and medical law. She acted as assessor in a number of murder trials and is consulted regularly by the media and practitioners on aspects of the law in her field of expertise.
Abstract In September 2008 France will be joining at least five other countries where Internet service providers block access to child pornography and content linked to terrorism and racial hatred. Although there is a general sentiment in favour of blocking child pornography, there are also those who question the effectiveness of this tactic. And while most people would agree on the principle of blocking web sites with content linked to “hate speech” and “terrorism,” the main problem lies with defining these terms. Freedom of expression is a treasured human right, but nowhere in the world has it been assigned an absolute value – restrictions on free speech differ from culture to culture. Although the Internet has benefited the promotion of free speech, the cross border data flow has necessitated a rethinking and re-evaluation of long settled values and outdated regulatory approaches in order to establish a new regulatory framework. This presentaton deals with the problems surrounding censorship on the Internet, various regulatory measures that could be applied, the effectiveness of these measures and the consequences thereof for freedom of expression. This paper will argue that whilst the digital divide needs to be bridged, especially in light of education, commerce, e-commerce, trade and health generally, there needs to be a certain amount of awareness of the problems which can arise in the developing world as a result of new technologies. Already in certain countries, piracy is rife and with access to new technologies, statistics show that it has increased. To highlight this fact, the paper delves in to a couple of case studies drawn from Sri Lanka and India. Whilst the music industry has taken harsh steps in UK and USA, the question remains to be asked about the rights of the actual creators when the issue arises from the developing world. Should the right holders be worried about digital piracy in developing countries or are they content to almost turn a ‘blind eye’ to piracy as the percentage of those involved in piracy in these countries is significantly lower than for example in Europe or USA. Whilst this paper will attempt to answer the above questions amongst others, it will also consider a system - an alternative compensation system – which was introduced by William W. Fisher III. This paper builds on Fisher’s proposed compensation system and adapts it particularly for Internet users in the developing world, whilst at the same time ensuring that right holders can also benefit from the ‘boom’ of new technologies in such countries.
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The Challenges E-commerce Poses to the Determination of a Taxable Presence: The “Permanent Establishment” Concept Analysed From a South African Perspective by Annet Oguttu and Sebo Tladi, University of South Africa.
	Mrs Annet Oguttu holds an LLB degree and a Masters degree with specialisation in tax law. She currently holds the position of a senior lecturer in the College of Law at the University of South Africa, where she lectures income tax law at both undergraduate and post graduate levels. She is in the process of finalising her PHD in International Tax Law. She has published articles in a number of national and international journals on various topics on South African income tax and International tax law. Her publications cover topics such as: transfer pricing, treaty shopping, double taxation of income and the taxation of electronic commerce. She has also presented a number of papers in these fields in a number of South African and international conferences.
	Sebo Tladi holds a BIuris degree from Vista University. She also holds LLB and LLM degrees both from the University of Pretoria. She is a Senior Lecturer in the Mercantile Law Department at the University of South Africa. She teaches Company Law and Legal Aspects of e-Commerce. She is also involved in the teaching of Legal Aspects of e-Commerce in the WIPO-UNISA Intellectual Property Development Programme. She is an active researcher in the fields of Electronic Commerce and Consumer Law. Sebo Tladi is also registered for her LLD thesis titled “The Protection of e-Consumers: A re-evaluation of the South African position based on International Trends”
Abstract When a foreign company sets up a branch in another jurisdiction, the profits arising through the branch’s activities can only be taxed in that jurisdiction if they arise from a source in that jurisdiction. Article 7(1) of the OECD Model Tax Convention clearly points out that a country may not tax the business profits of a non-resident enterprise unless those profits are attributed to a “permanent establishment” located in the source country. A “permanent establishment” is defined as a fixed place of business through which the enterprise is wholly or partly carried on. The “business establishment” concept is however based on the world where there had to be a physical presence of the business in order for its profits to be taxed. The requirement of a fixed place of business faces challenges when trade is conducted electronically as e-commerce makes it difficult to identifying a taxable presence in the source country. This article analyses the challenges that e-commerce poses to the “permanent establishment” concept from a South African perspective and recommendations for the effective application of the concept are provided.
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*Economic Partnership Agreements: Machiavellian instruments of EU Trade Policy or Samaritan development tools?* by Katharina Serrano, University of Central Lancashire.
	Katharina Serrano (PhD Candidate, University of Halle-Wittenberg, GER; LLM University of Leicester, UK; LLM(Mr.)/LLB University of Groningen, NL) is a Lecturer in Law at Lancashire Law School, University of Central Lancashire. Her current research focuses on EU foreign economic relations with ACP countries, especially in the context of Economic Partnership Agreements between the EU and the Small Island States of the South Pacific. Katharina is particularly interested in indirect transfer of European values and standards through development-, security- and economic policies of the EU and EU's role as legal and economic actor in international relations. Related areas of her research include transnational economic law, economic policy and regional integration studies.
Abstract The European Union (EU) has recently been confronted with harsh critique as to the strategic motives and methods employed in its trade relations with African, Caribbean and Pacific (ACP) countries, especially after negotiations of Economic Partnership Agreements (EPAs) have proven to be far from a smooth process. There is increasing concern about the developmental value of EPAs and their support for sustainable regional economic integration of ACP countries. This paper seeks to examine whether EPAs are appropriate development tools or rather strategic instruments used by the EU as catalysts in achievement of a global player status – at all cost. The theoretical framework employed for this analysis is based on Machiavelli’s virtues proposed to a successful leader in his work Il Principe. These will be critically compared with EU’s aims and objectives as expressed in the legal framework underlying EU-ACP relations in the 21st century.
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*Regional Integration Agenda for SADC “Caught in the winds of change” : Problems and Prospects* by Amos Saurombe, North West University.
	Amos Saurombe is a Lecturer at the North West University in South Africa where he teaches International Economic Law. He graduated with a Master in International trade and Investment law from the University of Western Cape (South Africa) and Amsterdam Law School (The Netherlands) in 2004 (Joint programme) and returned to South Africa to teach at the Nelson Mandela School of law-University of Fort Hare. He is currently finishing his MBA degree and has started work on a PhD study with the proposal already accepted. He is also a part-time trade policy advisor for the SADC Parliamentary Forum based in Windhoek, Namibia. Latest work with the forum includes advice on EPA negotiations for the SADC region as well as enhancing the participation of SADC Parliamentarians and Civil society on issues of regional integration. Current research projects lie in trade policy, regional integration and indigenous knowledge systems.
Abstract This paper seeks to elaborate on the difficult path the Southern Africa Development Community (hereinafter called SADC) finds itself in while trying to push for a regional integration agenda that is development oriented and globally relevant. The institutional framework of the organisation was previously oriented towards a cooperative and not on an integration approach. The 1992 SADC Treaty saw the redefinition of regional cooperation from a loose association towards a legally binding arrangement that seek integration. SADC also sought to focus on responding to challenges of globalisation, competitiveness and the quest to enlarge regional markets. The transformation from SADCC to SADC was not accompanied by appropriate institutional framework for integration. By 2001 the restructuring of SADC institutions was not well planned and executed resulting in a slow change. For this reason institutional challenges remain. The Secretariat is still not adequately transformed to suite the new approach. There is still a huge gap between SADC regional initiatives and member states national objectives. The set out agenda for transformation to a Free Trade area in 2008, Customs Union in 2010, Common Market in 2015, Monetary Union in 2016 and regional currency in 2018 is very ambitious under the current environment. Other challenges plague the region. There is no adequate internationalization of agreed integration objectives at national level since regional economic integration is not part of national policy framework. Issues of compliance and enforcement of rules are compromised since institutional frameworks are inadequate. Implementation responsibilities are left sorely to political organs such as the summit and council. This approach is unfriendly to the acceleration of integration. There is also lack of effective regional leadership. Multiple and overlapping membership also retard the emergence of leadership and implementation of agreed protocols. Lack of resources weakens the organisation and over donor dependence is a clear problem. However it is not all gloom and doom for SADC since it can mobilise for own resources. A robust agenda can be put in place to ensure effective implementation of the integration agenda through appropriate institutional mechanisms that discourage lip service. The regional infrastructure can be improved and deeper integration can be emphasised by enhancing stakeholder participation and ownership at national level. With improved political commitment and effective leadership, regional integration prospects are still very high.
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*TRIPs Flexibilities and Frameworks for Access to HIV/AIDS Medicine in Botswana, Kenya, and South Africa: A Tale of Positives and Negatives* by Omphemetse Sibanda, University of South Africa.
	S Sibanda (Omphemetse) (Doctor of Laws Candidate, University of Northwest, SA; LLM, Georgetown University, USA; LLB, South Africa, BJuris, Vista South Africa) is an Associate Professor at the Department of Criminal and Procedural Law, College of Law, University of South Africa. Research Interests: WTO, anti-dumping and countervailing duties, HIV/AIDS issues, environment and development, white collar crime, corporate law, hospitality industry law.
Abstract This paper is an objective, descriptive, comparative, and critical assessment of the legal framework, and pharmaceutical capacity of Botswana, Kenya and South Africa to employ the WTO rules and flexibilities to enhance accessibility of the treatment of HIV/AIDS pandemic. It is an obligation of all governments to take all appropriate measures to realize every person’s right to healthy environment and access to health facilities. The study will reveal that these countries have adopted appropriate TRIPs compliant environment. However, it is yet to be used significantly to address the HIV/AIDS pandemic. Moreover, the pharmaceutical manufacturing capacity in Botswana, kenya, and South Africa seems to have some critical limitations.
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