Software patents as such: Software patentability in New Zealand under the Patents Bill

<p>This paper examines the patentability of software under the Patents Bill. It attempts to determine how a New Zealand court will interpret the provisions of the Patents Bill that relate to the exclusion of software, and to what extent the “as such” exclusion will apply. It does this by looking at principles of statutory interpretation and the relevant English and European case law on the matter. It concludes that a New Zealand court will interpret the provision in accordance with UK precedent to give it a narrower interpretation than that given in Europe. The paper then examines the consistency of the provisions with the relevant international law before discussing some problems that may arise regarding market incentives and distributed systems. It proposes that the provision strikes an appropriate balance between protection and innovation in line with Parliament’s intent.</p>

Software patents as such: Software patentability in New Zealand under the Patents Bill

<p>This paper examines the patentability of software under the Patents Bill. It attempts to determine how a New Zealand court will interpret the provisions of the Patents Bill that relate to the exclusion of software, and to what extent the “as such” exclusion will apply. It does this by looking at principles of statutory interpretation and the relevant English and European case law on the matter. It concludes that a New Zealand court will interpret the provision in accordance with UK precedent to give it a narrower interpretation than that given in Europe. The paper then examines the consistency of the provisions with the relevant international law before discussing some problems that may arise regarding market incentives and distributed systems. It proposes that the provision strikes an appropriate balance between protection and innovation in line with Parliament’s intent.</p>

THE QUESTION OF INTERPRETATION IN THE NICHOLSON JUDGMENT Jacob Zuma v The National Director of Public Prosecutions [2009] I AII SA 54 N

It is interesting that prior to Nicholson J’s judgment in the matter of Jacob Zuma v The National Director of Public Prosecutions, that Judge President Tshabalala stated quite categorically that he did not want the judge who was to preside over the corruption trial of Jacob Zuma to be placed under scrutiny (see “Zuma Judge Gets Legal Professional’s Approval” 31 July 2008 Business Day 3). However, since Nicholson J’s decision of the Jacob Zuma trial, both the judge and his judgment have invariably become the subject of intense scrutiny. Nicholson J’s judgment is fraught with inconsistencies, incongruities and controversy. Nevertheless, no matter what the views are regarding the findings of Nicholson J, it has to be conceded that it resulted in one of the most far reaching political decisions in South African legal history, which resulted in the ousting of the country’s president (Thabo Mbeki). While the judgment raises a plethora of both political and legal issues, it is not the intention of the author to venture into the political arena; rather an analysis ofthe approach adopted to statutory interpretation which influenced the court’s decision, is considered.

The Plain Meaning Rule: A Quibble about Nomenclature and a Lot More

In the Cayman Islands, a British Overseas Territory, the proper understanding of the plain meaning rule (or literal rule) of statutory interpretation remains unclear. In its most basic iteration, the rule states that, where a statute is clear and unambiguous, the words must be given their natural and ordinary signification; there is no room for interpretation. That notwithstanding, to this day, even the meaning of the rule, as opposed to its application, still sometimes sparks debate in the Commonwealth. In 2015, a judge of the Grand Court in Cayman held that once a provision in a statute is clear and unambiguous, a court does not need to read the provision in its broader context. In a subsequent case, in 2018, a court of coordinate jurisdiction disagreed. It ruled that, even where a provision appears to be clear and unambiguous, a court must still read the statute in its fuller context in order to decipher the legal meaning in that particular context. This article discusses the plain meaning rule with a view to elucidating its proper understanding while questioning the appropriateness of its continuing nomenclature especially in light of developments in recent decades.

Imperial Tobacco Ltd v The Lord Advocate (Scotland) [2012] UKSC 61, Supreme Court

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Imperial Tobacco Ltd v The Lord Advocate (Scotland) [2012] UKSC 61, Supreme Court. This case concerned the devolved legislative competence of the Scottish Parliament, the powers reserved to the Westminster Parliament under the Scotland Act 1998, and how these provisions should be interpreted. The statutory interpretation of constitutional legislation is also considered. The document also includes supporting commentary from author Thomas Webb.

Protection of Copyright in Foreign Works in Nigeria: An Analysis of the Decision in Voice Web International Limited v Emerging Markets Telecommunication Services Ltd & Ors

The protection for copyright in foreign works in Nigeria has been a contentious and controversial issue for over three decades. In this case analysis, through a trilogy of cases, we trace the judicial trend and jurisprudence on this issue of copyright law. We argue that although Sec. 5 and Sec. 41 of the Nigerian Copyright Act provide two methods by which foreign works can receive protection under the Act, the courts have repeatedly declined to confer such protection. The most recent case on this issue, Voice Web International Limited v Emerging Markets Telecommunication Services Ltd & Ors, provided an opportunity for the courts to lay the issue to rest; however, unfortunately, the courts again failed to do so. In this opinion, we critically examine the case and discuss the legislative history conferring protection to foreign works. We conclude that the correct statutory interpretation in determining the protection of foreign works is reciprocity, and this was satisfied in the case under review.

The Decline of Natural Law and Custom

This chapter takes a close look at how natural law and custom virtually disappeared from the legal system in the late 19th and early 20th centuries. These were important changes, because they knocked out the common law’s two traditional foundations. If neither natural law nor custom were to play a role in the legal system, lawyers would have to rethink the grounding of the common law and the nature of common law decisionmaking. Natural law had also been a guide for judges in ascertaining the meaning of statutes and sometimes even in striking them down. Without natural law, lawyers would have to rethink the nature of statutory interpretation.

Restatements of Statutory Law: The Curious Case of the Restatement of Copyright

For nearly a century, the American Law Institute’s (ALI) Restatements of the Law have played an important role in the American legal system. And in all of this time, they refrained from restating areas of law dominated by a uniform statute despite the proliferation and growing importance of such statutes, especially at the federal level. This omission was deliberate and in recognition of the fundamentally different nature of the judicial role and of lawmaking in areas governed by detailed statutes compared to areas governed by the common law. Then in 2015, without much deliberation, the ALI embarked on the task of restating U.S. copyright law, an area dominated by a detailed federal statute. In so doing, the ALI ignored not just calls to revisit the form and method of its traditional Restatements projects but also the extensive history of the deep mismatch between the Restatements and statutory domains that has informed the working of the enterprise over the course of the last century. This Article explores the analytical and historical foundations of that mismatch and shows how the Restatement of Copyright reinforces the need to tailor a methodological template and perspective that is sensitive to the nature of statutory interpretation. It explains why perfunctory extension of the common law Restatement model to copyright law produces incoherent, misleading, and seemingly biased results that risk undermining the legitimacy of the eventual product. Finally, the Article explains how the mismatch between the two is capable of being remedied by a series of modest—yet significant—changes, which could allow the project to serve as a template for future statutory Restatements. These include: emphasizing the centrality of the statutory text and relevant interpretive sources, adopting crucial perspectival differences between incremental lawmaking and statutory interpretation, and highlighting the unique legislative process through which the statute was developed.