Journal articles on the topic 'Judicial error – great britain – cases'

Mediation as one of alternative dispute resolution means has been successfully applied in the civil relationship sphere in Great Britain for a long time, for example, in cases on protection of consumer rights or cases involving commercial activities. Mediation is not an obligatory condition for addressing a court, refusal from mediation may lead to negative consequences for the parties in the legal expense distribution. Courts are constantly emphasizing their interest in early settlement of disputes including public law ones that are reviewed in the judicial review procedure: the jurisdiction specifically designed for the verification of legality of actions and judgments of the public government.

The article deals with the comparative characterization of specialized courts for the protection of intellectual property rights in Ukraine and developed foreign countries, such as Great Britain and the USA. The article deals with the historical background of the creation of a specialized court on intellectual property in Ukraine, as well as the legal systems in the field of protection of intellectual property rights of Great Britain and the USA, the analysis and consideration of the current judicial systems – in the consideration of civil and criminal cases in the field of intellectual property. property, litigation of the patent authorities of England and Wales, types of specialized courts and their unique procedural features. The nuances and practice of law enforcement activities of judges in the United States, the types and levels of penalties in civil and criminal cases, as well as the divergence of lawsuits and pre-trial procedural arrangements are outlined. The article reveals the similarity of the UK and US legal systems with those currently in force in Ukraine in dealing with intellectual property cases. The identified deficiencies relate to territorial inaccessibility, instances of inconsistency, and imperfection of the judicial system, as well as the defects of the national intellectual property and legal frameworks in place in comparison with the United Kingdom and the United States of America in the field of intellectual property. After researching and analyzing the intellectual property rights protection systems of leading countries in the world, such as England and the United States of America, the conclusions were clearly drawn as to the advisability of setting up a specialized court on intellectual property in Ukraine and the risks involved.

As opposed to Russia, wide scope of judicial discretion is characteristic to the common law states. Recently Great Britain has started to apply in practice forwarding of draft judicial acts to the parties to the lawsuit prior to their final issuance, as a result of which the parties have an opportunity to influence the judge, which may conflict with the principles of legal certainty and independence of judges. As opposed to Russia, where judicial discretion and judges’ rights to review final judgments are statute-restricted, in England the judges’ powers are not enacted into law and are being constantly concretized by case law. For the purpose of helping domestic lawyers to prepare for such surprises, this article investigates, on the basis of a number of recent cases, the modern doctrine of functus officio, types of judiciary acts, which are reviewed after their final passing and serving to the parties, as well as the scope of judicial discretion after issuing judiciary acts, and provides answers on case law in relation to the functus officio institute.

The article is devoted to the description of the main directions of artificial intelligence application in the Commercial courts of the Russian Federation – in analytical and organisational work, in the work on adjudication, analysis and interpretation of the rule of law, in control over the adoption and execution of court decisions, in forensic examination. The experience of using artificial intelligence systems in the judicial systems of the Great Britain, the USA, the Netherlands was analysed, and three main directions of using the AI in legal proceedings were distinguished. Based on the practice of using the AI systems, legislation, the principles of the European Ethical Charter for the use of the AI in judicial and law enforcement systems, researchers' forecasts, both the expected positive and possible negative consequences of the use of artificial intelligence in this area are indicated. Use of the AI in legal proceedings can optimise the work of the judicial system, contribute to the suppression of biased, subjective attitudes, corruption and the possibility of judicial error, and at the same time it causes some problems and risks. These include the abidance of ethical principles by the AI, the impossibility of ensuring transparency and verifiability of court decisions made by the artificial intelligence system, the lack of legislative consolidation and legality, and the protection of personal information. In the conclusion, recommendations for prevention of the negative impact of the introduction of the AI systems into arbitration proceedings are given.

This paper was designed to derive legal issues on the railway special judicial police system, present comments on them, and ultimately promote policy suggestions. The main issues can be summarized as the appropriateness of the name, the basis for the exercise of administrative police authority, competition under the jurisdiction of general police officers, and compliance with the principle of legal reservation. The legal authority of the railway police was reviewed in the order of organizational laws, administrative police laws, judicial police laws, and administrative rules. And we looked at the cases of Britain, France, the United States, and Germany and drew implications. Railway police in developed countries were given both administrative police power and judicial police power within their jurisdiction, and security guards were helping regular railway police officers. The legal problems of the current railway special judicial police system are the railway police do not have a legal basis for exercising administrative police power and the Regulations on the Execution of Duties of Railway Judicial Police Officers are only administrative rules. In this paper, five issues were derived and the following comments were developed. First, the Railway Safety Act should be revised so that railway police can exercise their administrative police rights. Second, it is necessary to upgrade the Regulations on the Execution of Duties of Railway Judicial Police Officers to the level of legal orders. Third, There is a great need to reasonably coordinate object jurisdiction and regional jurisdiction with the general police. Fourth, railroad operators should be obligated to operate security personnel. Fifth, it is desirable to reorganize the organization of the Railway Bureau of the Ministry of Land, Infrastructure and Transport.

Redress, in cases when the damage has been caused by uninsured or unidentified vehicle, in the United Kingdom is organized on specific manner. Task of providing compensation in such cases is entrusted to the organization Motor Insurers' Bureau (MIB). This task has been entrusted by agreements concluded between the state and MIB. Regardless of this specificity, MIB is a guarantee fund, an institute which exists in other European states. British courts expressed their stance on legal nature of MIB. Case-law of the United Kingdom earlier had considered that MIB was an institute of private law. Due to the influence of the Court of Justice of the European Union, a different stance has prevailed. Courts of Great Britain accepted arguments of the European judicial institution. Now they consider that MIB is a subject of the public law - emanation of the state. This standpoint has been implemented in the United Kingdom's law and will not be abandoned after the Brexit. The British example shows how the dilemma on the legal nature of a guarantee fund can be resolved in the country that is not a member of the European Union.

The current task of the Russian legislature in developing new procedures for dispute resolution using modern technologies is to apply the latest experience of advanced foreign countries in this sphere. The UK is undoubtedly one of these countries. The UK’s experience in digitizing its own justice system and establishing an online court is the focus of this article. It analyzes the concept of online courts in the UK, various pilots in this field, as well as the Judicial Review and Courts Act 2022, which enshrined a number of provisions regarding online procedures; it identifies some shortcomings of the concept of online procedure and pilot projects. Purpose: based on the analysis of pilot projects reports, regulations and scientific sources to form an idea of the formation and development of online dispute resolution (ODR) procedure in courts and tribunals of Great Britain. Methods: theoretical methods of formal and dialectical logic; empirical methods of comparison, description, interpretation. Such specific scientific methods as legal-dogmatic and interpretation of legal norms are used. The study reveals that, against the background of austerity, justice in England and Wales is changing significantly through the use of technologies, which begs the question: are the fundamental principles of due process being lost in the pursuit of modernization and efficiency? The attempt to digitize the UK’s justice system involves the creation of an online court, the feature of which is mediation built into the procedure as part of dispute resolution. It is expected that the online court will become a mandatory forum for resolving cases within its jurisdiction and will initially deal with money disputes of up to £25,000. However, the issues of access to justice for all categories of citizens and the openness and transparency of justice have not yet been resolved.

The paper discusses various legislative and enforcement approaches in the Russian Federation, USA, and Great Britain; compares the various provisions of the Plenums of the Supreme Arbitration Court of the Russian Federation and the Armed Forces of the Russian Federation on issues of good faith; analyzes the application of these provisions by the courts when considering issues of holding directors to account as a result of malpractice that entailed property damage. By the example of consideration of a number of key cases from the law enforcement practice of the courts of the Anglo-American system of law, the question of the use of tests is considered: objective and subjective integrity tests to regulate the issue of holding the executive body accountable. English and American courts resort to the criterion of good faith in very rare cases, and the fiduciary duty of directors in commercial companies was significantly limited. The approach used by the common law courts implies a minimal degree of court interference in the economic affairs of commercial companies. Holding the director accountable is allowed only in case of obvious neglect of duties or is considered in some cases based on the specific circumstances of the case. Russian courts often hold directors accountable not as a result of gross negligence or proven intentional actions by executive bodies to harm the company, but as a result of society not achieving the desired economic result. Besides, dishonesty compensates for obvious gaps in the internal corporate routine, which do not make it possible to precisely determine the boundaries of authority and the area of responsibility of the executive body. The author formulates a conclusion on the degree of admissible judicial discretion when applying the provisions on good faith to corporate relations as requiring special regulation.

The article deals with the features of a participant in criminal proceedings on the part of the prosecution-the victim. The author notes the high importance of observing the interests of the victim as a victim of a crime in criminal proceedings, which is one of the elements of the constitutional balance of interests in the criminal procedure legislation of the Russian Federation. The article analyzes the features of procedural rights under the Statute of Criminal Proceedings of the Russian Empire before 1917. It is noted that the victim of the crime had a greater amount of rights in cases of private prosecution. The author analyzes the modern approach of the legislator in a number of European countries (Great Britain, the French Republic, the Swiss Confederation) to the protection of the rights of the victim of a crime in criminal proceedings. Attention is drawn to the fact that according to European legislators, the state, represented by its public bodies that carry out criminal prosecution, should not only bear greater responsibility for bringing the perpetrators to criminal responsibility, but also impose the burden of compensation for the damage caused to the victim of the crime. Several variants of approaches to solving the problem of improving the procedural status of the victim in the criminal proceedings of the Russian Federation are proposed. The author expresses an opinion on the practical solution of certain problems of protecting the rights of the victim in criminal proceedings, without making changes to the Russian criminal procedure legislation. The article is illustrated with examples from judicial practice.

The article is dedicated to the gains, problems, and perspectives of studying the Ukrainian civil procedure law. It covers polythematic studies of the Ukrainian civil procedure law presented in dissertations. Despite the updates to the civil procedure laws of Ukraine, not all the civil procedure regulations and institutions (sources of the civil procedure law, evaluation categories in civil procedure law, civil jurisdiction, entities subject to civil procedure law, electronic evidence, legal expert’s opinions, measures of procedural compulsion, specifics of considering and settling civil cases of certain categories through the appeal and cassation procedure, specifics of considering by court the claims for imposing restrictions on an individual for gambling and attending gambling events, specifics of considering by court the claims for issuing and prolonging a restrictive injunction, judicial control of the execution of civil judgements, resuming the lost proceedings by court) were the subject of the scientific research; many of them require a systematic analysis to be carried out by experts. The article states that the Ukrainian civil procedure studies lack the comparative legal research including the Ukrainian and foreign practices (first of all, those existing in the European Union and the Organization for Economic Co-operation and Development, the Great Britain, the United States of America). The next pieces of research may focus on how the scientific thought is and will be developing in terms of the notarial and enforcement law and process. It is worth specifying the past, present, and future of the legal studies dedicated to the alternative forms of settling civil disputes.

The named entity recognition (NER) in the field of public interest litigation can assist prosecutors in handling cases and provide them with specific entities in making legal documents. Previously, the context-free deep learning model is used to catch the semantic comprehension, in which the static word vector is obtained without considering the context. Moreover, this kind of method relies on word segmentation technology and cannot solve the error transmission caused by word segmentation inaccuracy, which brings great challenges to the Chinese NER task. To tackle the above issues, an entity recognition method based on pretraining is proposed. First, based on the basic entities, three legal ontologies, NERP, NERCGP, and NERFPP are developed to expand the named entity recognition corpus in the judicial field. Second, a variant of the pretrained model BERT (Bidirectional Encoder Representations from Transformer) called BERT-WWM (whole-word mask)-EXT(extra) is introduced to catch the text character-level word vector hierarchical and the context bidirectional features, which effectively solve the problem of task boundary division of named entities. Then, to further improve the model recognition effect, the general knowledge learned from the pretrained model is used to fit the downstream neural network BiLSTM (bi-long short-term memory), and at the end of the architecture, CRF (conditional random fields) is introduced to restrict the label relationship. Finally, the experimental results show that the proposed method is more effective than the existing methods, which reach 96% and 90% in the F1 index of NER and NERP entities, respectively.

The research paper examines the legal category of procedural (proceedings) law “Right to a Fair Trial” as a fundamental element of the European Human Rights Convention and the judicial practice of the European Court of Human Rights. The Authors concentrate mainly on the general part of Article 6 and focus on crucial aspects of the mentioned right which have become significant for the daily legal practice in the Russian Federation, Republic of Austria and other member states. In the domestic Russian legal doctrine, there are sectoral and international legal studies devoted to the Convention for the Protection of Human Rights and Fundamental Freedoms, the functioning of the European Court of Human Rights and the legal nature of its acts (A. Abashidze, E. Alisevich, M. Biryukov, S. Kalashnikova,V. Tumanov, K. Aristova).Along with this, from the standpoint of conventional rights, Russian legal scholars studied the procedural features of the implementation of acts of the European Court of Human Rights and the application of conventional norms in civil, arbitration and criminal cases (I. Vorontsova, T. Solovieva, M. Glazkova, S. Afanasiev, L. Volosatova, E. Iodkovsky, K. Mashkova, etc.).The private-scientific research methods used by the Authors in the presented scientific article, predominantly comparative, require the study of the works of foreign scholars in the field of law, which include P. Leanza, O. Pridal, D. Spielmann, V. M. Zupancic, H. Mosler, A. Buyse. Despite the rather large volume of doctrinal sources on the nature and implementation of conventional rights, the issues of applying the right to a fair trial in administrative disputes and cases arising from public law relations have not become the subject of scientific research. The empirical basis of the study conducted by the Authors is composed of 66 pilot judgments and other acts of the European Court of Human Rights on complaints from individuals against Russia, Austria, France, Finland, the Netherlands, Great Britain, Switzerland and other member states of the Council of Europe; judicial acts of the courts of Russia, Austria and other European countries. It is concluded that the practice of Article 6 of the European Human Rights Convention by the European Court has had a remarkable and sometimes unprecedented impact on public law and law enforcement activities of the European countries that are parties to the Convention. As Russian and Austrian experience shows, the decision of the European Court on behalf of the enforcement of Article 6 in one specific case can induce the state not only to adopt a separate law, but also to carry out serious institutional changes. Many such examples are given below by the Authors, which testify that the decisions of the European Court are able to act as a powerful law-forming force on the national level.

The article examines the issues related to the compensation of moral damages to the employee and the determination of the amount of moral damages in case of violation of the employee’s labor rights. The relevance of the research topic is justified by the fact that in modern conditions the institution of compensation for moral damage in labor law needs to be improved, in particular, in the part of the procedure for determining the amount of compensation. The institution of compensation for moral damage to the employee is widespread in the international community and in some foreign countries, which indicates the effectiveness of this institute in the regulation of labor relations. The article analyzes the provisions of the current labor legislation of Ukraine in the part of regulation of compensation for moral damage. The specifics of compensation for moral damage in labor law are also defined, which allow to partially distinguish the specified institution from the institution of moral damage in civil legislation. During the writing of the article, both general scientific methods and special-legal methods were used, in particular, the method of state-legal modeling, dialectical, formal-legal, systemic-structural, comparative-legal and other methods. The foreign experience of legal regulation of compensation for moral damage to the employee is summarized, as well as proposals for improving the labor legislation of Ukraine developed on its basis. In the process of writing the article, the legal framework and judicial practice regarding the compensation of moral damage to the employee of Austria, Great Britain, Germany, France, the United States of America and other foreign countries were investigated. The legal regulation of the definition of moral damage, the grounds and conditions of liability, the procedure for considering cases on determining the amount of compensation for moral damage to an employee as a result of the employer’s illegal actions are analyzed. Taking into account foreign experience, it was established the need to develop an effective mechanism for determining the amount of moral damage, which, in turn, will contribute to the unification of the specified mechanism and ensure the stability and unity of judicial practice and the predictability of court decisions. A comparative analysis of compensation for moral damages within the framework of labor relations under the legislation of foreign countries allowed us to conclude that the system of determining the amount of compensation for moral damages formed in them can be taken into account when improving the current labor legislation of Ukraine.

This article research the peculiarities of the legal regulation of the employer’s material responsibility as a party to an employment contract. The main problems of legal regulation of bringing the employer to material responsibility according to the current legislation on labor of Ukraine are outlined. In order to find ways to improve the current domestic labor legislation, the foreign experience of the legal regulation of bringing the employer to material responsibility was summarized (grounds, procedure for compensation of property damage caused to the employee, grounds for exempting the employer from material responsibility), as well as proposals for improving the legislation on labor of Ukraine. In particular, it was concluded that the current labor legislation of Ukraine does not contain provisions regarding the employer’s material responsibility for the damage caused to the employee. Since Chapter IX “Guarantees in the event of assigning material responsibility to employees for damage caused to the enterprise, institution, organization” provides rules exclusively on the material responsibility of one party to the employment contract - the employee. Particular attention is paid to the fact that the draft Labor Code of Ukraine No. 2410 provides provisions on the material responsibility of the employer, but the relevant norms need to be revised.In the process of writing the article, the legal framework, judicial practice and achievements of legal doctrine regarding the regulation of the employer’s material responsibility in such countries as Belgium, Great Britain, Spain, France and the United States of America were studied. During the writing of the article, general and special methods of learning social processes and legal phenomena were used, including formallogical, dialectical, system-functional and comparative-legal and other methods.Taking into account the experience of foreign countries in the field of legal regulation of the employer’s material responsibility, it was established the need to supplement the provisions of the current labor legislation of Ukraine with provisions on the employer’s material responsibility. Conclusions were made about the expediency of legislative consolidation of both general provisions on holding the employer to material responsibility and special cases of holding the employer to material responsibility.

The current pace of development of information technology is such that no country's legal system can objectively keep up with its adequate regulation. As a consequence, the Internet community is looking for its own, equally reliable and effective, but fast and modern systems of fair resolution of conflicts that arise between the rightholders of various classic means of individualisation (usually trademarks) and domain names. In today's hightech world, the role and importance of domain names cannot be underestimated. They control destinies, prepare revolutions, crush cults and shape national politics. Their ability to easily personalize any information resource in cyberspace is highly valued by specialists in a variety of fields. Their number in the world (over 320 million) and in our country (5 million) exceeds many times the number of any other means of individualization, but the domain name as an object of law has not been sufficiently defined in the Russian legislation to this day. Despite this, domains have long been sold and bought and there have been numerous and costly court battles over them. The Russian-speaking reader is familiar with the judicial processes for resolving such disputes. However, out-of-court means of resolving such cases, little known to our readers, are in demand in foreign practice. They are used in the domain area not only to address the claims of holders of traditional means of individualization to domain owners, but also in disputes between domain name registrars in the transfer of the domain between them on the application of third parties, if the domain registration does not meet the requirements of the domain zone, the requirements to suspend the registration of domain names in new domain zones, etc. The need to develop alternative dispute resolution systems was driven by conflicting court practices and the search for a way to resolve domain disputes in a fast, not very expensive and efficient procedure, given that such disputes were often extraterritorial in nature. The latter is easier to explain with an example. For example, one of the largest domestic construction companies faced a situation where a domain similar to its name in a foreign zone was registered through an Australian registrar for a resident of Great Britain, and the content site provided by ill-wishers from the Moscow region. In such circumstances, going to court in Russia or the UK was ineffective because the execution of the decision was to be secured from the domain registrar. At the same time, there were no grounds to sue the registrar (in Australia) because it did not violate anyone's rights. This situation is typical when registering a domain in an "international" or foreign domain zone, as the registrar's country of origin is usually irrelevant to the user, as opposed to the price. Of course, recourse to the traditional justice system is possible in such a situation, but not everyone can afford the time and money required to resolve it. Contribution of the authors: the authors contributed equally to this article. The authors declare no conflicts of interests.

The article examines the main criteria for the legitimacy of restriction the right to freedom of creation in the practice of the European Court of Human Rights, in particular, legitimacy (legality) – the restriction of the right to freedom of creation should be provided for by international and national legislation, the purpose of which is to restrict the right to freedom of creation to be justified, coherent purpose, consistent with the principle proportionality and not to go beyond the bounds of necessity; content – restrictions on the freedom of creation can not be interpreted expanded, correspond to the basic content of freedom of creation and its social purpose. It has been determined that in the practice of the European Court of Human Rights there are various legal positions regarding the restriction of the right to freedom of creation. In order to streamline the practice of applying the Convention, since compliance with the precedent not only meets the requirements of the independence and impartiality of the Court, but also reflects the very essence of judicial policy, consider the most typical decisions of the ECtHR in complaints about limiting the right to freedom of creation. It is concluded that in each case dealt with by the ECtHR, there are grounds for making a decision both in favor of the complainants and in support of governments for limiting the freedom of creativity. The importance of the above mentioned restrictions on the right to freedom of creativity in the case law of the European Court of Human Rights is that: - first, they relate to pressing issues concerning the restriction of freedom of creation, as the competence of the right to freedom of expression, which is enshrined in Art. 10 of the Convention; - second, in the cases cited above, the ECtHR ruled that convictions were not in these cases in violation of Article 10 of the Convention and supported the position of national courts in interfering with freedom of expression of the arts; - Thirdly, the decision of the ECHR points to the absence of a single international concept of "public morality", from which it can be concluded that it is expedient to determine the general tendencies in the development of modern morals of mankind; - fourthly, the decision of the ECtHR in complaints concerning the restriction of the right to freedom of creativity, which infringes religious feelings of the population, norms of social ethics and morals, provided that the state intervention was carried out with a high degree of conviction in its expediency, the court turns to the side national courts. Relevant restrictions on the freedom of creativity are considered legitimate if they are aimed at preventing neglect of the feelings of national minorities or believers in protecting the most vulnerable categories of the audience (children) if there is a danger that they may have access to this information. However, we are talking about well-considered decisions, since under the same slogans censorship and other undemocratic institutions can be introduced, and here the important point of the ECHR as a guarantor of the Convention is considered. It is determined that in the European legal tradition, the freedom of creativity is closely connected with the restrictions, the need for which must be proved with a high degree of their legitimacy (legality), proportionality and expediency (purpose). The analysis of judgments of the European Court of Human Rights concerning the violation of Article 10 of the Convention made it possible to summarize the case law of the ECHR in the area of restricting the right to freedom of creation and to divide it into three groups, depending on the grounds for interference of the states in the freedom of creativity: Restriction of the right to freedom of creativity in order to protect health; Restrictions on the right to freedom of creativity that are necessary in a democratic society in the interests of national security, territorial integrity or public security, in order to prevent riots or crimes; Restriction of the right to freedom of creativity in order to protect the reputation or rights of others. When restricting the right to freedom of creativity in order to protect the health or morals of others, the case law of the ECtHR recognizes a broad discretion by the states. In resolving the question of the limits of state intervention in order to protect public morality, the Court proceeds from the absence of a single coherent international concept of "public morality". The limits of freedom of creativity are set by the states in accordance with the norms of social ethics and morals. Relevant restrictions on the freedom of creativity are considered legitimate if they are aimed at preventing neglect of the feelings of national minorities or believers, to protect the most vulnerable categories of the audience (children), etc. (“Müller and Others v. Switzerland”, "Handyside v. Great Britain", "Otto Preminger v. Austria"). The restrictions on creativity in the practice of the ECHR in cases involving encroachments on the democratic foundations of society in the interests of national security, territorial integrity or public security, in order to prevent riots or crimes are relatively narrower. The precedent of such decisions in assessing the validity of government actions, their determinants of urgent social need, proportionality and compliance with the legitimate aim. When interfering with the right to freedom of creativity, an analysis of the balance between the restrictions that are necessary in a democratic society and the right to freedom of expression are considered. Summing up the practice of the ECHR concerning restrictions on the freedom of creativity that are necessary in a democratic society.

Abstract COMPENSATION TO VICTIMS OF CRIMINAL OFFENCES The system of composition, which was developed during the Middle Ages, especially under Germanic penal law, represents not only an abatement of the system of collective vengeance characteristic of this era, but also the first step towards the principle of compensation to victims of criminal offences. With the development and consolidation of a strong central power, the State asked for a share of these transactions either in the form of sanction or as a price for its intervention. W^hen at last the central government obtained the full and exclusive right to inflict punishment and when private justice gave way to public justice, the State's share of compensation increased progressively and took the form of fines, while the victim's share gradually diminished and withdrew little by little from the penal system to become civil compensation for damages. Nevertheless, the total separation between public action, whose aim is to ensure punishment, and civil action, whose main object is to secure compensation to the victim, did not materialize until very recently. This principle of total separation, which was adopted by the classical school of criminal law, resulted in a complete overlooking of the victim's right to compensation, in daily legal practice. New solutions were therefore proposed to remedy this deficiency in the penal systems, the most original and daring being those to be found in the Spanish Penal Codes of 1822 and 1848 which compel the State to compensate victims of criminal offences when the wrong-doers or other responsible persons are unable to do so. This idea of compensation by the State to victims of crime, although taken lip and elaborated several years later by Bentham and the Italian Positivist School, had absolutely no repercussions as far as practice was concerned. It was only in the second half of the XXth Century that an Englishwoman, Margaret Fry, drew the attention to this problem. Inspired by her compatriot Bentham, Margaret Fry proclaimed that compensation for harm caused to victims of criminal violence should be assumed by the State. This was the starting point of a considerable development in the study of compensation to the victim. During the last ten years, not only were many papers and conferences devoted to the subject, but also many legislations adopted the progressive solution of conferring upon the State the task of compensating the victim of criminal offences. In most contemporary penal legislations, the dissociation between public and civil action has resulted in relegating the subject of compensation solely to the civil domain. A certain number of penal systems (France, Belgium, Germany, etc.), while accepting in principle the civil character of this matter, nevertheless offer the injured party the possibility of bringing his action for damages before criminal courts. A last group of systems (Spain, Italy, Switzerland) treat this problem within the framework of the criminal code, although in most cases they do nothing but repeat analogous paragraphs of the civil code. Upon examining these different methods of coping with the problem of compensating the victim for damages caused by criminal violence, we find that certain reforms were put into effect but that they chiefly hinge upon one preliminary question ~— the means available to the victim for bringing his case before the criminal courts and of engaging in the criminal procedure, to obtain recognition of his rights by the Court. However, it often happens that once the sentence has been passed, the victim is obliged to act on his own to recover the sum of the indemnity. Modern penal law, progressive and innovating as it is in certain respects, often neglects the victim of crime. Certain solutions were proposed and even introduced into positive penal legislations, in view of securing for the injured party, as much as possible, the recovery of the compensation decided upon by the courts in his favour, especially in cases where the offender is destitute. Among such solutions, one should stress legal solidarity between co-delinquents, priority accorded to the compensation debt, accessory imprisonment, compulsory work in prison and in liberty, compulsory insurance and the creation of a compensation fund. Similar proposals tend to consider compensation to the victim as an indispensable condition for the obtainment of certain privileges (pardon, parole, probation, legal rehabilitation, etc.). Due to the insufficiency of the classical systems and of the solutions destinated to secure compensation of the victim by the offender, one again began to wonder whether the State should not undertake the charge of repairing damages caused by crime. The main argument offered in favour of this system is the State's failure in preventing crime and in protecting its citiiens against felonious acts. Despite the numerous criticisms concerning the essentially judicial composition of the courts in charge of the application of the system as well as of the procedure to be followed, the infractions to be compensated, the amount to be paid and the total cost of the system, some countries have recognized the right of the victim to be compensated and consequently adopted measures to enforce this principle (New Zealand, 1963; Great Britain, 1964; States of California and New York, 1966; the Canadian province of Saskatchewan, 1967).

The article raises the problem of notifying the participants in the civil procedure. The analysis is carried out on the institution of notification of persons participating in the case, through the prism of digitalization of the administration of justice in civil cases. The author examines the nature of the judicial notice, defining the conditions for the recognition of the notice as appropriate. The comparative legal method of scientific knowledge makes it possible to draw a parallel with the arbitration process and identify gaps in the legal regulation of the definition of proper notification in the civil procedural legislation. As digital configurations of judicial notice, the author provides examples of notification by means of SMS messages, as well as using the functionality of the courts’ official websites on the Internet and e-mail. The conditions for the recognition of such methods as appropriate are considered. The dialectic of digitalization of judicial notice in Russia is traced. For comparison, it is used the experience of foreign countries (Italy, South Korea, Great Britain). Based on the results obtained, taking into account innovations in the field of personal identification in the information and communication network Internet, it is determined a new method of notifying persons participating in the case using instant messengers. The author investigates the possibility of recognizing this method as appropriate, points out the merits of its use and the rationality of its recognition as an acceptable means of communication on the part of the judicial system.

Abstract In Tyrer v. United Kingdom (1978), the European Court of Human of Human Rights ruled that judicial corporal punishment contravened Article 3 of the European Convention on Human Rights, which proscribed “degrading treatment or punishment.” The case unfolded at a formative moment in British legal activism, as left-wing civil-liberties lawyers who had been wary of human rights discourse began taking cases to Strasbourg. The case also involved tactical challenges for British politicians and government lawyers. The case originated on the Isle of Man, which is close to the British mainland but constitutionally not part of the United Kingdom: it is a “crown dependency” with its own executive, legislature, and judiciary, and it persisted with judicial corporal punishment long after the practice had been abolished in Great Britain. By convention, the British government respected the island's laws and criminal-justice policies, but Britain was responsible for the island's compliance with international agreements—including the European Convention on Human Rights. How the British government dealt with the Isle of Man during and after the litigation had direct implications for a host of other small territories in what remained of the British empire—in particular, Britain's remaining Caribbean territories. The Tyrer case's protracted endgame was an object lesson in how much Britain's “unwritten” constitution depends on negotiation, manipulation, and avoiding the overt exercise of powers that might crumble upon use.

Problem setting. The article examines the problems and prospects of creating a court on intellectual property inUkraine. The experience of the functioning of such judicial bodies in European countries, as well as in Great Britain,Germany and France, is considered. Analysis of recent researches and publications. It should be noted that the issue of the functioning of the judiciaryand specialized courts in the judicial system of Ukraine is not entirely new to modern science, because to some extentthey were considered by many leading scholars and practitioners, including N. Vilgushinsky, M. Kosyuta, L. Moskvich,I. Marochkina, V. Serdyuk, S. Prylutsky, V. Sukhonos and many others. Article’s main body. The requirements for applicants for the positions of judges are being studied. It is emphasizedthat there is a too long selection of judges for the Supreme Court on Intellectual Property Issues: overload of economiccourts dealing with cases of this category; interested persons, whose rights are violated in the field of intellectual property,do not apply for the protection of these rights in economic courts, awaiting the formation of a specialized court. Itis noted that effective protection of the violated rights of authors of scientific inventions, utility models, literary andmusical works, computer programs is a guarantee of compliance with the principles of the rule of law and legality, whichare important principles of a democratic state. Conclusions and prospects for the development. The emergence and full functioning of such an institution inUkraine is an urgent need for effective protection of the rights of individuals in the field of intellectual property. Allchanges to the legislation of Ukraine in general, as well as the legislation governing the consideration of cases in the fieldof intellectual property, must be comprehensive and carefully considered. The ability of a lawyer to protect the violatedrights of authors of scientific inventions, utility models, literary and musical works, computer programs is a guarantee ofadherence to the principles of the rule of law and legality, which are important principles of a democratic state.

The article examines the international legal prohibitions on the commission of genocide established by the international fundamental principles of jus cogens, examines the correlation of such international fundamental principles as the right of peoples to self-determination and the inviolability of borders. It describes the content of the lawsuits in the case “Armenia vs Azerbaijan”, which were filed by Armenia to the International Court of Justice of the United Nations, with a request for the application of temporary measures to protect the rights of residents of NagornoKarabakh, enshrined in the “International Convention on the Elimination of All Forms of Racial Discrimination”. The legal analysis of the principle of universal jurisdiction is carried out. The author substantiates the possibility of applying universal jurisdiction in cases of crimes of genocide and provides examples of the judicial practice of the European Court of Human Rights (ECHR), as well as the courts of Israel, Denmark, Bavaria (Germany), Rotterdam, The Hague (Netherlands), Lausanne (Switzerland), Great Britain. The article analyzes the international legal and organizational problems of bringing to criminal responsibility representatives of the military and political leadership of Azerbaijan for committing the crime of genocide of the Armenian population of Nagorno-Karabakh. Due to the fact that currently it is possible to bring to justice representatives of the military and political leadership of another State only at the international level, the possibility of accepting the investigation of crimes against the peace and security of mankind, including the crime of genocide, by both the ICC and the national court of another State is being considered.

The article, prepared for the 200th anniversary of the Monroe Doctrine deals with the specific characteristics of the legal and political cultures of the West, headed by the USA, which drastically differ from the Russian and the Latin American corresponding cultures. The author comes to the conclusion, that the phenomena of “monroism”, based on the Anglo-Saxon legal system, has a constant character, and, hav ing been transformed through the times, is always present in the political practices of the USA and other countries of the Anglo-Saxon world. Using precedents, this system in cites its user to gain maximum profit, while its method is selectivity. This leads to the “loosely” used policies of the double standards. The author gives examples of such, comparing the cases of Panama (1903) and Kosovo (1999). He also mentions the politics of the Great Britain with respect of the native population of the Diego Garcia Island (1966) and the Falkland (Malvinas) isles (1982-2013). The author thinks, that one cogni tive dissonances, based on the differences in the legal conscience between the Russian and the Anglo-Saxon”worlds” have objective and constant character, while not admitting this circumstance would be an error. In his next article the author plans to through light on the common features that Russia share with the legal and political culture of the Latin American countries, which contribute to their more active cooperation in the international politics.

Introduction Daffodil Day, usually held in spring, raises funds for cancer awareness and research using this symbol of hope. On that day, people who donate money to this good cause are usually given a yellow daffodil pin to wear. When I lived in Auckland, New Zealand, on the last Friday in August most people walking around the city centre proudly wore a cheerful yellow flower. So many people generously participated in this initiative that one almost felt obliged to join the cause in order to wear the ‘uniform’ – the daffodil pin – as everyone else did on that day. To donate and to wear a daffodil is the social expectation, and operating in social environment people often endeavour to meet the expectation by doing the ‘appropriate things’ defined by societies or communities. After all, who does not like to receive a beam of acceptance and appreciation from a fellow daffodil bearer in Auckland’s Queen Street? States in international society are no different. In some ways, states wear ‘uniforms’ while executing domestic and foreign affairs just as human beings do within their social groups. States develop the understandings of desirable behaviour from the international community with which they interact and identify. They are ‘socialised’ to act in line with the expectations of international community. These expectations are expressed in the form of international norms, a prescriptive set of ideas about the ‘appropriate behaviour for actors with a given identity’ (Finnemore and Sikkink 891). Motivated by this logic of appropriateness, states that comply with certain international norms in world politics justify and undertake actions that are considered appropriate for their identities. This essay starts with examining how international norms can be spread to different countries through the process of ‘state socialisation’ (how the countries are ‘talked into’ wearing the ‘uniform’). Second, the essay investigates the idea of ‘cultural match’: how domestic actors comply with an international norm by interpreting and manipulating it according to their local political and legal practices (how the countries wear the ‘uniform’ differently). Lastly, the essay probes the current international normative community and the liberal values embedded in major international norms (whether states would continue wearing the ‘uniform’). International Norms and State Socialisation: Why Do States Wear the ‘Uniforms’? Norm diffusion is related to the efforts of ‘norm entrepreneurs’ using various platforms to convince a critical mass of states to embrace new norms (Finnemore and Sikkink 895-896). Early studies of norm diffusion tend to emphasise nongovernmental organisations (NGOs) as norm entrepreneurs and advocates, such as Oxfam and its goal of reducing poverty and hunger worldwide (Capie 638). In other empirical research, intergovernmental organisations (IGOs) were shown to serve as ‘norm teachers,’ such as UNESCO educating developing countries the value of science policy organisations (Finnemore 581-586). Additionally, states and other international actors can also play important roles in norm diffusion. Powerful states with more communication resources sometimes enjoy advantages in creating and promoting new norms (Florini 375). For example, the United States and Western European countries have often been considered as the major proponents of free trade. Norm emergence and state socialisation in a normative community often occurs during critical historical periods, such as wars and major economic downturns, when international changes and domestic crises often coincide with each other (Ikenberry and Kupchan 292). For instance, the norm entrepreneurs of ‘responsible power/state’ can be traced back to the great powers (mainly the United States, Great Britain, and the Soviet Union) and their management of international order at the end of WWII (see Bull). With their negotiations and series of international agreements at the Cairo, Tehran, Yalta, and Potsdam Conference in the 1940s, these great powers established a post-World War international society based on the key liberal values of international peace and security, free trade, human rights, and democracy. Human beings are not born to know what appropriate behaviour is; we learn social norms from parents, schools, peers, and other community members. International norms are collective expectations and understanding of how state governments should approach their domestic and foreign affairs. States ‘learn’ international norms while socialising with a normative community. From a sociological perspective, socialisation summarises ‘how and to what extent diverse individuals are meshed with the requirement of collective life’ at the societal level (Long and Hadden 39). It mainly consists of the process of training and shaping newcomers by the group members and the social adjustment of novices to the normative framework and the logic of appropriateness (Long and Hadden 39). Similarly, social psychology defines socialisation as the process in which ‘social organisations influence the action and experience of individuals’ (Gold and Douvan 145). Inspired by sociology and psychology, political scientists consider socialisation to be the mechanism through which norm entrepreneurs persuade other actors (usually a norm novice) to adhere to a particular prescriptive standard (Johnston, “Social State” 16). Norm entrepreneurs can change novices’ behaviour by the methods of persuasion and social influence (Johnston, “Treating International Institutions” 496-506). Socialisation sometimes demands that individual actors should comply with organisational norms by changing their interests or preferences (persuasion). Norm entrepreneurs often attempt to construct an appealing cognitive frame in order to persuade the novices (either individuals or states) to change their normative preferences or adopt new norms. They tend to use language that can ‘name, interpret and dramatise’ the issues related to the emerging norm (Finnemore and Sikkink 987). As a main persuasive device, ‘framing’ can provide a singular interpretation and appropriate behavioural response for a particular situation (Payne 39). Cognitive consistency theory found in psychology has suggested the mechanism of ‘analogy’, which indicates that actors are more likely to accept new ideas that share some similarities to the extant belief or ideas that they have already accepted (see Hybel, ch. 2). Based on this understanding, norm entrepreneurs usually frame issues in a way that can associate and resonate with the shared value of the targeted novices (Payne 43). For example, Finnemore’s research shows that when it promoted the creation of state science bureaucracies in the 1960s, UNESCO associated professional science policy-making with the appropriate role of a modern state, which was well received by the post-war developing countries in Latin America, the Middle East, and Southeast Asia (Finnemore 565-597). Socialisation can also emanate actors’ pro-norm behaviour through a cost-benefit calculation made with social rewards and punishments (social influence). A normative community can use the mechanism of back-patting and opprobrium to distribute social reward and punishment. Back-patting – ‘recognition, praise and normative support’ – is offered for a novice’s or member’s cooperative and pro-norm behaviour (Johnston, “Treating International Institutions” 503). In contrast, opprobrium associated with status denial and identity rejection can create social and psychological costs (Johnston 504). Both the reward and punishment grow in intensity with the number of co-operators (Johnston 504). A larger community can often create more criticism towards rule-breakers, and thus greatly increase the cost of disobedience. For instance, the lack of full commitment from major powers, such as China, the United States, and some other OECD countries, has arguably made global collective action towards mitigating climate change more difficult, as the cost of non-compliance is relatively low. While being in a normative environment, novice or emerging states that have not yet been socialised into the international community can respond to persuasion and social influence through the processes of identification and mimicking. Social psychology indicates that when one actor accepts persuasion or social influence based on its desire to build or maintain a ‘satisfying self-defining relationship’ to another actor, the mechanism of identification starts to work (Kelman 53). Identification among a social group can generate ‘obligatory’ behaviour, where individual states make decisions by attempting to match their perceptions of ‘who they are’ (national identity) with the expectation of the normative community (Glodgeier and Tetlock 82). After identifying with the normative community, a novice state would then mimic peer states’ pro-norm behaviour in order to be considered as a qualified member of the social group. For example, when the Chinese government was deliberating over its ratification of the Cartagena Protocol on Biosafety in 2003, a Ministry of Environmental Protection brief noted that China should ratify the Protocol as soon as possible because China had always been a country ‘keeping its word’ in international society, and non-ratification would largely ‘undermine China’s international image and reputation’ (Ministry of Environmental Protection of PRC). Despite the domestic industry’s disagreement with entering into the Protocol, the Chinese government’s self-identification as a ‘responsible state’ that performs its international promises and duties played an important role in China’s adoption of the international norm of biosafety. Domestic Salience of International Norms: How Do States Wear the ‘Uniforms’ Differently? Individual states do not accept international norms passively; instead, state governments often negotiate and interact with domestic actors, such as major industries and interest groups, whose actions and understandings in turn impact on how the norm is understood and implemented. This in turn feeds back to the larger normative community and creates variations of those norms. There are three main factors that can contribute to the domestic salience of an international norm. First, as the norm-takers, domestic actors can decide whether and to what extent an international norm can enter the domestic agenda and how it will be implemented in policy-making. These actors tend to favour an international norm that can justify their political and social programs and promote their interests in domestic policy debates (Cortell and Davis, “How Do International Institutions Matter?” 453). By advocating the existence and adoption of an international norm, domestic actors attempt to enhance the legitimacy and authority of their current policy or institution (Acharya, “How Ideas Spread” 248). Political elites can strengthen state legitimacy by complying with an international norm in their policy-making, and consequently obtain international approval with reputation, trust, and credibility as social benefits in the international community (Finnemore and Sikkink 903). For example, when the UN General Assembly adopted the Declaration on the Rights of Indigenous Peoples (UNDRIP), only four states – Australia, Canada, New Zealand, and the United States – voted against the Declaration. They argued that their constitutional and national policies were sufficiently responsive to the type of Indigenous self-determination envisioned by UNDRIP. Nevertheless, given the opprobrium directed against these states by the international community, and their well-organised Indigenous populations, the four state leaders recognised the value of supporting UNDRIP. Subsequently all four states adopted the Declaration, but in each instance state leaders observed UNDRIP’s ‘aspirational’ rather than legal status; UNDRIP was a statement of values that these states’ policies should seek to incorporate into their domestic Indigenous law. Second, the various cultural, political, and institutional strategies of domestic actors can influence the effectiveness of norm empowerment. Political rhetoric and political institutions are usually created and used to promote a norm domestically. Both state and societal leaders can make the performative speech act of an international norm work and raise its importance in a national context by repeated declarations on the legitimacy and obligations brought by the norm (Cortell and Davis, “Understanding the Domestic Impact” 76). Moreover, domestic actors can also develop or modify political institutions to incorporate an international norm into the domestic bureaucratic or legal system (Cortell and Davis, “Understanding the Domestic Impact” 76). These institutions provide rules for domestic actors and articulate their rights and obligations, which transforms the international norm’s legitimacy and authority into local practices. For example, the New Zealand Government adopted a non-nuclear policy in the 1980s. This policy arose from the non-nuclear movement that was leading the development of the Raratonga Treaty (South Pacific Nuclear Free Zone) and peace and Green party movements across Europe who sought to de-nuclearise the European continent. The Lange Labour Government’s 1984 adoption of an NZ anti-nuclear policy gained impetus because of these larger norm movements, and these movements in turn recognised the normative importance of a smaller power in international relations. Third, the characteristics of the international norm can also impact on the likelihood that the norm will be accepted by domestic actors. A ‘cultural match’ between international norm and local values can facilitate norm diffusion to domestic level. Sociologists suggest that norm diffusion is more likely to be successful if the norm is congruent with the prior values and practices of the norm-taker (Acharya, “Asian Regional Institutions” 14). Norm diffusion tends to be more efficient when there is a high degree of cultural match such that the global norm resonates with the target country’s domestic values, beliefs or understandings, which in turn can be reflected in national discourse, as well as the legal and bureaucratic system (Checkel 87; Cortell and Davis, “Understanding the Domestic Impact” 73). With such cultural consistency, domestic actors are more likely to accept an international norm and treat it as a given or as ‘matter-of-fact’ (Cortell and Davis, “Understanding the Domestic Impact” 74). Cultural match in norm localisation explains why identical or similar international socialisation processes can lead to quite different local developments and variations of international norms. The debate between universal human rights and the ‘Asian values’ of human rights is an example where some Asian states, such as Singapore and China, prioritise citizen’s economic rights over social and political rights and embrace collective rights instead of individual rights. Cultural match can also explain why one country may easily accept a certain international norm, or some aspect of one particular norm, while rejecting others. For example, when Taiwanese and Japanese governments adapted the United Nations Declaration on the Rights of Indigenous Peoples into their local political and legal practice, various cultural aspects of Indigenous rights have been more thoroughly implemented compared to indigenous economic and political rights (Gao et al. 60-65). In some extreme cases, the norm entrepreneurs even attempt to change the local culture of norm recipients to create a better cultural match for norm localisation. For example, when it tried to socialise India into its colonial system in the early nineteenth century, Britain successfully shaped the evolution of Indian political culture by adding British values and practices into India’s social, political, and judicial system (Ikenberry and Kupchan 307-309). The International Normative Community: Would States Continue Wearing ‘Uniforms’? International norms evolve. Not every international norm can survive and sustain. For example, while imperialism and colonial expansion, where various European states explored, conquered, settled, and exploited other parts of the world, was a widely accepted idea and practice in the nineteenth century, state sovereignty, equality, and individual rights have replaced imperialism and become the prevailing norms in international society today. The meanings of the same international norm can evolve as well. The Great Powers first established the post-war international norms of ‘state responsibility’ based on the idea of sovereign equality and non-intervention of domestic affairs. However, the 1980s saw the emergence of many international organisations, which built new standards and offered new meanings for a responsible state in international society: a responsible state must actively participate in international organisations and comply with international regimes. In the post-Cold War era, international society has paid more attention to states’ responsibility to offer global common goods and to promote the values of human rights and democracy. This shift of focus has changed the international expectation of state responsibility again to embrace collective goods and global values (Foot, “Chinese Power” 3-11). In addition to the nature and evolution of international norms, the unity and strength of the normative community can also affect states’ compliance with the norms. The growing size of the community group or the number of other cooperatives can amplify the effect of socialisation (Johnston, “Treating International Institutions” 503-506). In other words, individual states are often more concerned about their national image, reputation and identity regarding norm compliance when a critical mass of states have already subscribed into the international norm. How much could this critical mass be? Finnemore and Sikkink suggest that international norms reach the threshold global acceptance when the norm entrepreneurs have persuaded at least one third of all states to adopt the new norm (901). The veto record of the United Nation Security Council (UNSC) shows this impact. China, for example, has cast a UNSC veto vote 17 times as of 2022, but it has rarely excised its veto power alone (Security Council Report). For instance, though being sceptical of the notion of ‘Responsibility to Protect’, which prioritises human right over state sovereignty, China did not veto Resolution 1973 (2011) regarding the Libyan civil war. The Resolution allowed the international society to take ‘all necessary measure to protect civilians’ from a failed state government, and it received wide support among UNSC members (no negative votes from the other 14 members). Moreover, states are not entirely equal in terms of their ‘normative weight’. When Great Powers act as norm entrepreneurs, they can usually utilise their wealth and influence to better socialise other norm novice states. In the history of promoting biological diversity norms which are embedded in the Convention on Biological Diversity (CBD), the OECD countries, especially France, UK, Germany, and Japan, have been regarded as normative leaders. French and Japanese political leaders employed normative language (such as ‘need’ and ‘must’) in various international forums to promote the norms and to highlight their normative commitment (see e.g. Chirac; Kan). Additionally, both governments provided financial assistance for developing countries to adopt the biodiversity norms. In the 2011 annual review of CBD, Japan reaffirmed its US$12 million contribution to assisting developing countries (Secretariat of the Convention on Biological Diversity 9). France joined Japan’s commitment by announcing a financial contribution of €1 million along, with some additional funding from Norway and Switzerland (Secretariat of the Convention on Biological Diversity 9). Today, biological diversity has been one of the most widely accepted international environmental norms, which 196 states/nations have ratified (United Nations). While Great Powers can make more substantial contributions to norm diffusion compared to many smaller powers with limited state capacity, Great Powers’ non-compliance with the normative ‘uniform’ can also significantly undermine the international norms’ validity and the normative community’s unity and reputation. The current normative community of climate change is hardly a unified one, as it is characterised by a low degree of consensus. Major industrial countries, such as the United States, Canada, and Australia, have not yet reached an agreement concerning their individual responsibilities for reducing greenhouse emissions. This lack of agreement, which includes the amount of cuts, the feasibility and usefulness of such cuts, and the relative sharing of cuts across various states, is complicated by the fact that large developing countries, such as China, Brazil, and India, also hold different opinions towards climate change regimes (see Vidal et al.). Experts heavily criticised the major global powers, such as the European Union and the United States, for their lack of ambition in phasing out fossil fuels during the 2022 climate summit in Egypt (COP27; Ehsan et al.). In international trade, both China and the United States are among the leading powers because of their large trade volume, capacity, and transnational network; however, both countries have recently undermined the world trade system and norms. China took punitive measures against Australian export products after Australia’s Covid-19 inquiry request at the World Health Organisation. The United States, particularly under the Trump Administration, invoked the WTO national security exception in Article XXI of the General Agreement on Tariffs and Trade (GATT) to justify its tariffs on steel and aluminium. Lastly, norm diffusion and socialisation can be a ‘two-way path,’ especially when the norm novice state is a powerful and influential state in the international system. In this case, the novices are not merely assimilated into the group, but can also successfully exert some influence on other group members and affect intra-group relations (Moreland 1174). As such, the novices can be both targets of socialisation and active agents who can shape the content and outcome of socialisation processes (Pu 344). The influence from the novices can create normative contestation and thus influence the norm evolution (Thies 547). In other words, novice states can influence international society and shape the international norm during the socialisation process. For example, the ‘ASEAN Way’ is a set of norms that regulate member states’ relationships within the Association of Southeast Asian Nations (ASEAN). It establishes a diplomatic and security culture characterised by informality, consultation, and dialogue, and consensus-building in decision-making processes (Caballero-Anthony). From its interaction with ASEAN, China has been socialised into the ‘ASEAN Way’ (Ba 157-159). Nevertheless, China’s relations with the ASEAN Regional Forum (ARF) also suggest that there exists a ‘feedback’ process between China and ARF which resulted in institutional changes in ARF to accommodate China’s response (Johnston, “The Myth of the ASEAN Way?” 291). For another example, while the Western powers generally promote the norm of ‘shared responsibility’ in global environment regimes, the emerging economies, such as the BRICS countries (Brazil, Russia, India, China, and South Africa), have responded to the normative engagement and proposed a ‘Common but Differentiated Responsibilities’ regime where the developing countries shoulder less international obligations. Similarly, the Western-led norm of ‘Responsibility to Protect’, which justifies international humanitarian intervention, has received much resistance from the countries that only adhere to the conventional international rules regarding state sovereignty rights and non-intervention to domestic affairs. Conclusion International norms are shared expectations about what constitutes appropriate state behaviour. They are the ‘uniforms’ for individual states to wear when operating at the international level. States comply with international norms in order to affirm their preferred national identities as well as to gain social acceptance and reputation in the normative community. When the normative community is united and sizable, states tend to receive more social pressure to consistently wear these normative uniforms – be they the Geneva Conventions or nuclear non-proliferation. Nevertheless, in the post-pandemic world where liberal values, such as individual rights and rule of law, face significant challenges and democracies are in decline, the future success of the global normative community may be at risk. Great Powers are especially responsible for the survival and sustainability of international norms. The United States under President Trump adopted a nationalist ‘America First’ security agenda: alienating traditional allies, befriending authoritarian regimes previously shunned, and rejecting multilateralism as the foundation of the post-war global order. While the West has been criticised of failing to live up to its declared values, and has suffered its own loss of confidence in the liberal model, the rising powers have offered their alternative version of the world system. Instead of merely adapting to the Western-led global norms, China has created new institutions, such as the Belt and Road Initiatives, to promote its own preferred values, and has reshaped the global order where it deems the norms undesirable (Foot, “Chinese Power in a Changing World Order” 7). Great Power participation has reshaped the landscape of global normative community, and sadly not always in positive ways. Umberto Eco lamented the disappearance of the beauty of the past in his novel The Name of the Rose: ‘stat rosa pristina nomine, nomina nuda tenemus’ ('yesterday’s rose endures in its name, we hold empty names'; Eco 538). If the international community does not want to witness an era where global norms and universal values are reduced to nominalist symbols, it must renew and reinvigorate its commitment to global values, such as human rights and democracy. It must consider wearing these uniforms again, properly. 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Proponents of the free culture movement argue that contemporary, “over-zealous” copyright laws have an adverse affect on the freedoms of consumers and creators to make use of copyrighted materials. Lessig, McLeod, Vaidhyanathan, Demers, and Coombe, to name but a few, detail instances where creativity and consumer use have been hindered by copyright laws. The “intellectual land-grab” (Boyle, “Politics” 94), instigated by the increasing value of intangibles in the information age, has forced copyright owners to seek maximal protection for copyrighted materials. A propertarian approach seeks to imbue copyrighted materials with the same inalienable rights as real property, yet copyright is not a property right, because “the copyright owner … holds no ordinary chattel” (Dowling v. United States 473 US 207, 216 [1985]). A fundamental difference resides in the exclusivity of use: “If you eat my apple, then I cannot” but “if you “take” my idea, I still have it. If I tell you an idea, you have not deprived me of it. An unavoidable feature of intellectual property is that its consumption is non-rivalrous” (Lessig, Code 131). It is, as James Boyle notes, “different” to real property (Shamans 174). Vaidhyanathan observes, “copyright in the American tradition was not meant to be a “property right” as the public generally understands property. It was originally a narrow federal policy that granted a limited trade monopoly in exchange for universal use and access” (11). This paper explores the ways in which “property talk” has infiltrated copyright discourse and endangered the utility of the law in fostering free and diverse forms of creative expression. The possessiveness and exclusion that accompany “property talk” are difficult to reconcile with the utilitarian foundations of copyright. Transformative uses of copyrighted materials such as mashing, sampling and appropriative art are incompatible with a propertarian approach, subjecting freedom of creativity to arbitary licensing fees that often extend beyond the budget of creators (Collins). “Property talk” risks making transformative works an elitist form of creativity, available only to those with the financial resources necessary to meet the demands for licences. There is a wealth of decisions throughout American and English case law that sustain Vaidhyanathan’s argument (see for example, Donaldson v. Becket 17 Cobbett Parliamentary History, col. 953; Wheaton v. Peters 33 US 591 [1834]; Fox Film Corporation v. Doyal 286 US 123 [1932]; US v. Paramount Pictures 334 US 131 [1948]; Mazer v. Stein 347 US 201, 219 [1954]; Twentieth Century Music Corp. v. Aitken 422 U.S. 151 [1975]; Aronson v. Quick Point Pencil Co. 440 US 257 [1979]; Dowling v. United States 473 US 207 [1985]; Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539 [1985]; Luther R. Campbell a.k.a. Luke Skyywalker, et al. v. Acuff-Rose Music, Inc. 510 U.S 569 [1994].). As Lemley states, however, “Congress, the courts and commentators increasingly treat intellectual property as simply a species of real property rather than as a unique form of legal protection designed to deal with public goods problems” (1-2). Although section 106 of the Copyright Act 1976 grants exclusive rights, sections 107 to 112 provide freedoms beyond the control of the copyright owner, undermining the exclusivity of s.106. Australian law similarly grants exceptions to the exclusive rights granted in section 31. Exclusivity was a principal objective of the eighteenth century Stationers’ argument for a literary property right. Sir William Blackstone, largely responsible for many Anglo-American concepts concerning the construction of property law, defined property in absolutist terms as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the whole universe” (2). On the topic of reprints he staunchly argued an author “has clearly a right to dispose of that identical work as he pleases, and any attempt to take it from him, or vary the disposition he has made of it, is an invasion of his right of property” (405-6). Blackstonian copyright advanced an exclusive and perpetual property right. Blackstone’s interpretation of Lockean property theory argued for a copyright that extended beyond the author’s expression and encompassed the very “style” and “sentiments” held therein. (Tonson v. Collins [1760] 96 ER 189.) According to Locke, every Man has a Property in his own Person . . . The Labour of his Body and the Work of his hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property. (287-8) Blackstone’s inventive interpretation of Locke “analogised ideas, thoughts, and opinions with tangible objects to which title may be taken by occupancy under English common law” (Travis 783). Locke’s labour theory, however, is not easily applied to intangibles because occupancy or use is non-rivalrous. The appropriate extent of an author’s proprietary right in a work led Locke himself to a philosophical impasse (Bowrey 324). Although Blackstonian copyright was suppressed by the House of Lords in the eighteenth century (Donaldson v. Becket [1774] 17 Cobbett Parliamentary History, col. 953) and by the Supreme Court sixty years later (Wheaton v. Peters 33 US 591 [1834]), it has never wholly vacated copyright discourse. “Property talk” is undesirable in copyright discourse because it implicates totalitarian notions such as exclusion and inalienable private rights of ownership with no room for freedom of creativity or to use copyrighted materials for non-piracy related purposes. The notion that intellectual property is a species of property akin with real property is circulated by media companies seeking greater control over copyrighted materials, but the extent to which “property talk” has been adopted by the courts and scholars is troubling. Lemley (3-5) and Bell speculate whether the term “intellectual property” carries any responsibility for the propertisation of intangibles. A survey of federal court decisions between 1943 and 2003 reveals an exponential increase in the usage of the term. As noted by Samuelson (398) and Cohen (379), within the spheres of industry, culture, law, and politics the word “property” implies a broader scope of rights than those associated with a grant of limited monopoly. Music United claims “unauthorized reproduction and distribution of copyrighted music is JUST AS ILLEGAL AS SHOPLIFTING A CD”. James Brown argues sampling from his records is tantamount to theft: “Anything they take off my record is mine . . . Can I take a button off your shirt and put it on mine? Can I take a toenail off your foot – is that all right with you?” (Miller 1). Equating unauthorised copying with theft seeks to socially demonise activities occurring outside of the permission culture currently being fostered by inventive interpretations of the law. Increasing propagation of copyright as the personal property of the creator and/or copyright owner is instrumental in efforts to secure further legislative or judicial protection: Since 1909, courts and corporations have exploited public concern for rewarding established authors by steadily limiting the rights of readers, consumers, and emerging artists. All along, the author was deployed as a straw man in the debate. The unrewarded authorial genius was used as a rhetorical distraction that appealed to the American romantic individualism. (Vaidhyanathan 11) The “unrewarded authorial genius” was certainly tactically deployed in the eighteenth century in order to generate sympathy in pleas for further protection (Feather 71). Supporting the RIAA, artists including Britney Spears ask “Would you go into a CD store and steal a CD? It’s the same thing – people going into the computers and logging on and stealing our music”. The presence of a notable celebrity claiming file-sharing is equivalent to stealing their personal property is a more publicly acceptable spin on the major labels’ attempts to maintain a monopoly over music distribution. In 1997, Congress enacted the No Electronic Theft Act which extended copyright protection into the digital realm and introduced stricter penalties for electronic reproduction. The use of “theft” in the title clearly aligns the statute with a propertarian portrayal of intangibles. Most movie fans will have witnessed anti-piracy propaganda in the cinema and on DVDs. Analogies between stealing a bag and downloading movies blur fundamental distinctions in the rivalrous/non-rivalrous nature of tangibles and intangibles (Lessig Code, 131). Of critical significance is the infiltration of “property talk” into the courtrooms. In 1990 Judge Frank Easterbrook wrote: Patents give a right to exclude, just as the law of trespass does with real property … Old rhetoric about intellectual property equating to monopoly seemed to have vanished, replaced by a recognition that a right to exclude in intellectual property is no different in principle from the right to exclude in physical property … Except in the rarest case, we should treat intellectual and physical property identically in the law – which is where the broader currents are taking us. (109, 112, 118) Although Easterbrook refers to patents, his endorsement of “property talk” is cause for concern given the similarity with which patents and copyrights have been historically treated (Ou 41). In Grand Upright v. Warner Bros. Judge Kevin Duffy commenced his judgment with the admonishment “Thou shalt not steal”. Similarly, in Jarvis v. A&M Records the court stated “there can be no more brazen stealing of music than digital sampling”. This move towards a propertarian approach is misguided. It runs contrary to the utilitarian principles underpinning copyright ideology and marginalises freedoms protected by the fair use doctrine, hence Justice Blackman’s warning that “interference with copyright does not easily equate with” interference with real property (Dowling v. United States 473 US 207, 216 [1985]). The framing of copyright in terms of real property privileges private monopoly over, and to the detriment of, the public interest in free and diverse creativity as well as freedoms of personal use. It is paramount that when dealing with copyright cases, the courts remain aware that their decisions involve not pure economic regulation, but regulation of expression, and what may count as rational where economic regulation is at issue is not necessarily rational where we focus on expression – in a Nation constitutionally dedicated to the free dissemination of speech, information, learning and culture. (Eldred v. Ashcroft 537 US 186 [2003] [J. Breyer dissenting]). Copyright is the prize in a contest of property vs. policy. As Justice Blackman observed, an infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use. While one may colloquially link infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud. (Dowling v. United States 473 US 207, 217-218 [1985]). Copyright policy places a great deal of control and cultural determinism in the hands of the creative industries. Without balance, oppressive monopolies form on the back of rights granted for the welfare of society in general. If a society wants to be independent and rich in diverse forms of cultural production and free expression, then the courts cannot continue to apply the law from within a propertarian paradigm. The question of whether culture should be determined by control or freedom in the interests of a free society is one that rapidly requires close attention – “it’s no longer a philosophical question but a practical one”. References Bayat, Asef. “Un-Civil Society: The Politics of the ‘Informal People.’” Third World Quarterly 18.1 (1997): 53-72. Bell, T. W. “Author’s Welfare: Copyright as a Statutory Mechanism for Redistributing Rights.” Brooklyn Law Review 69 (2003): 229. Blackstone, W. Commentaries on the Laws of England: Volume II. New York: Garland Publishing, 1978. (Reprint of 1783 edition.) Boyle, J. Shamans, Software, and Spleens: Law and the Construction of the Information Society. Cambridge: Harvard UP, 1996. 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(Sep. 2006) "‘Property Talk’ and the Revival of Blackstonian Copyright," M/C Journal, 9(4). Retrieved echo date('d M. Y'); ?> from <http://journal.media-culture.org.au/0609/5-collins.php>.