February 2011

Today, at a (invitation only) conference in Sydney, Australia’s Attorney-General Robert McClelland announced Australia’s copyright reform agenda for the next little while. I wasn’t there, but a transcript of the speech is here. In short, the agenda is this:

  1. On the issues in iinet, the AG believes that ‘an industry dialogue on this issue is the most productive way forward’. Apparently ‘The Government will look closely at the outcomes of any industry discussions’.
  2. On Australia’s Safe Harbours, the AG ‘to consult on proposals to adopt a broader definition of ‘carriage service provider’.’ to broaden the availability of these Safe Harbours. There will be a consultation paper on this soon.
  3. The AG’s Department will be considering the Copyright Advisory Group’s request for an additional exception to the anti-circumvention provisions, and will ‘invite submissions seeking views on whether any other new exceptions should be included, and I again invite those affected to take this opportunity to raise their issues.’ If you want to jailbreak your iphone, or anything else for that matter, now might be the time to think about it.
  4. The ALRC will likely get a reference towards the end of the year on copyright. The terms of reference will have to be written not to overlap with other work (like the convergence review) (good luck with that). At least, the ALRC is likely to look at exceptions in copyright in the context of the online environment and whether the correct balance exists’

Interesting times.

What is the line between academic criticism of a work and defamatory statements about the author? A French court is currently considering this issue.

In 2007, a book review website, www.globallawbooks.org, published a review of a book by Dr. Karin N. Calvo-Goller about the International Crimimal Court. The review, written by Professor Thomas Weigend, then Director of the Cologne Institute of Foreign and International Criminal Law and Dean of the Faculty of Law at the University of Cologne, was not particularly favorable. Professor Weigend’s criticism included:

…in the main part of her book [the author] simply restates the contents of relevant parts of the ICC Statute and the Rules of Procedure and Evidence…

…this exercise in rehashing the existing legal set-up is particularly unproductive since a large part of the volume consists in a reprint of the ICC Statute and its Rules of Procedure and Evidence…

…analytical nuggets are all too rare…

…[the author’s] conceptual grasp of the “inquisitorial” systems seems insufficient for a critical analysis that might go beneath the surface…

However, the review clearly states that the fault is as much with the editor as with the author of the book:

Karin Calvo-Goller has undoubtedly invested much time and effort into this book, which – but for regrettably sloppy editing – might well serve as a first systematic introduction to the procedural issues confronting the ICC.

The review is certainly not at all favourable. But neither is it a personal attack on the author.

On the other side of the matter from the author is the editor of the journal in question, Professor Joseph Weiler. Professor Weiler is no recent entrant to the academic scene. He is a well-known and respected scholar, currently University Professor at New York University, as well as the Joseph Straus Professor of Law and European Union Jean Monnet Chair at NYU School of Law. He was previously a professor at Harvard Law School and the University of Michigan Law School, and has published widely–as well as having extensive experience as an editor of academic works. His full qualifications and experience, as both an academic and legal consultant, are too numerous to summarise here.

So how did Dr. Calvo-Goller respond to the poor review? First, she asked Professor Weiler, as editor, to remove the review from the journal’s website. She was unsuccessful in doing so, even after asking a second time. All of the details are set out here. A few months later, Professor Weiler was asked to appear before a magistrate in France to respond to charges of criminal defamation brought by Dr. Calvo-Goller.

A description of the hearings and how the suit came about, as told by Professor Weiler, is available here.

The trial has now taken place, and a verdict is expected on 3 March 2011.

I should disclose that I am a former student of Professor Weiler. But the motivation behind the suit does not seem right to me. Does claiming defamation in the form of an unfavourable book review strike anyone as discouraging free expression and communication? At the very least, it seems to be an inappropriate use of the legal process. Bad reviews of one’s work, while upsetting and sometimes damaging, also appear to be a fact of academic life.

At the very least, as the New York Times has noted, damage to Dr. Calvo-Goller’s reputation may not only be achived by the poor review, but by the criminal complaint itself.