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This chapter considers good faith in the Principles of European Contract Law (PECL). It explains that Article 1:201 of PECL declares that each party must act in accordance with good faith and fair dealing, and that this duty may not be excluded or limited by the parties. The chapter argues that the contract laws of the world's uncodified mixed legal systems – in which Common Law and Civil Law sources, rules, concepts and methods have interacted for long periods – often show striking parallels with the results of PECL.

The Markets in Financial Instruments Directive (MiFID) lays down organizational and conduct-of-business rules on conflicts of interest of investment firms and banks providing investment services. It is easy to predict that, as a consequence of the home country control principle, the MiFID will lead to de facto complete harmonization of the rules on conflicts of interest: Member States will refrain from enacting further rules on conflicts of interest so as to avoid putting domestic firms at a competitive disadvantage vis-à-vis EC firms. This chapter inquires into this prospective uniformity, making two points. Firstly, the uniformity will be more apparent than real. Secondly, that the uniform rules on conflicts of interests will lower the degree of investor protection in at least some Member States (namely, Italy) where regulation would be most needed in light of the lower degree of competition in the financial services industry, the lower level of investor education, and the unimpressive record of the financial services authority.

Premised on realizing a balance between protection and access, ‘limitations and exceptions’ play an important role in the any copyright system. Jurisdictions around the world are generally thought to adopt one of two possible approaches to structuring limitations and exceptions: (a) the fair dealing approach, which delineates highly specific and carefully-worded exceptions with little room for judicial discretion, and (b) the fair use approach, which relies on more open-ended language and its contextual tailoring by courts. This chapter undertakes a comparative analysis of these two approaches using the Indian and US copyright systems as its focus. It shows that, although the two countries adopt different approaches as formal matter, in practice, they show far more convergence and similarity than might be predicted from the pure black letter of the law. In the process, the chapter casts doubt on the ubiquity and utility of the distinction in comparative copyright thinking.

The introduction traces the history of Truman’s relationship with Congress from the end of World War II to the eve of the Korean War. Due to southern resistance to his Fair Deal initiatives, civil rights issues in particular, Truman struggled to maintain Democratic Party unity. World War II marked the beginning of bipartisanship in foreign policy, with both major parties tacitly agreeing not to include international issues in political debate in order to present a unified front to the world. By the end of the 1940s, however, the bipartisan foreign policy idea began to unravel, and international affairs figured heavily in the 1950 midterm elections. Joseph McCarthy’s accusations of communist infiltration into the State Department contributed significantly to rancor between Truman and Congress just before the Korean War broke out.

This chapter focuses on various factors which are potentially relevant to the application of the parody exception. It begins with a discussion of the problematic nature of defining the contours of the parody exception, placing emphasis on fair dealing and rules of the genre that traditionally constitute a two-step assessment used by the courts to determine whether the use of the work is ‘for the purpose of parody’. It then considers a number of landmark decisions that illustrate the relevance of the ‘traditional’ fairness factors adopted in the judicial consideration of the parody exception. These factors include the intent of the parodist, encroachment upon the right-holder’s economic rights, absence of confusion, the quantity reproduced, motives of the parodist, and the three-step test. The chapter concludes by asking whether national courts might introduce new factors and seek to adapt the parody exception to new kinds of uses.

This chapter begins with a dissection of two legal doctrines limiting an author’s copyright: fair use and fair dealing. Where the former is notoriously loose, I argue, the latter is unwieldy (and ultimately drifts into the looseness of the former anyway). Taking up recently revived discussion of “users’ rights,” and given our understanding of copyright as a natural right, I draw an important in-principle line between justified and unjustified copying of another’s protected work. Although copyright is a natural right, I contend, it is not thus an absolute right.

The second chapter focuses on the user and examines how this subject has become an increasingly prominent element of copyright law across the twentieth century. After introducing the basics (and history) of fair dealing and fair use, the chapter discusses how people moved from creators to consumers due to regulatory frameworks and the technological limitations imposed on radio and television. I then turn to the late-twentieth century and consider the presence of a creative element in the discourse around users during the Web 2.0 moment and suggest that the on-going transitions between creative and consuming user can best be understood through a relational framework.

Clark Clifford's new office was only four blocks from the White House. Clifford took on but one partner, Edward H. Miller, a lawyer from the Justice Department whom Clifford knew from St. Louis. Although he was an avowed liberal and a former adviser to Harry S. Truman, Clifford diligently worked to transform himself into someone that corporate America could be comfortable with. On November 15, 1949, a week before news of his departure was leaked to the press, Clifford gave a speech before the annual dinner of the Grocery Manufacturers Association. The speech, entitled “Business and the Government's Program,” stressed his conception of a symbiotic partnership between business and government. Much of the speech involved a defense and explanation of the Fair Deal as well as the Truman administration's foreign policy, but Clifford likely viewed the speech as an opportunity to present himself as an ally to the business community.

After summarizing the argument from the preceding chapters, the afterword looks at some of the theoretical and practical implications that arise from the view offered. In particular, the afterword deals with the question of perpetual copyright, and the problem of how to about implementing the theoretical view offered in a useful legal model.

Contrary to orthodoxy, good faith is no stranger to English law. Properly understood, we have been “speaking prose all our lives without knowing it.” The debate over whether to introduce a doctrine of good faith is therefore misconceived—the horse has bolted; the stable door has opened. Rather, the salient questions are: (i) How can a good faith requirement be justified? (ii) What role should it play in the evolution of English contract law? (iii) What does good faith require? And, (iv) how can we start to taxonomize its demands in order to stabilize its requirement? We support a humble role for good faith as an attitude of honesty, fair dealing, and fidelity to the contractual purpose that is, in turn, constitutive of the activity of contracting. These three aspects are manifest in many contract law rules that apply with different intensity and effect to the four categories of contracts that we identify. This is our proposed taxonomy “3 by 4.” Open recognition of this humble version of good faith will: make explicit the implicit ethical content of English contract law, enhance our understanding and organization of many apparently disparate rules, legitimize these rules and facilitate legal development in a manner consistent with common law incrementalism. This leaves open the policy questions of how far and how fast English law should travel down the road of good faith.

This chapter looks at the challenges faced by progressives in veterans organizations, the labor movement, national politics, and the 1948 presidential election in the U.S. The impact of domestic communism and anti-communism commands a prominent place here. The anti-communist affidavit required of union officials by the Taft–Hartley law of 1947 was an early warning sign of the tidal wave of anti-communism starting to wash over American political culture. No matter how the CIO (Congress of Industrial Organizations) acted, dealing with communist influence in its unions would divide the federation. However, the problem of communism in American public life went far beyond the confines of organized labor. It erupted most visibly in the Hollywood film studios and the broadcasting industry. Conflict within the American Veterans Committee (AVC) makes for an especially illuminating case study. The chapter then considers the fate of Harry Truman's “Fair Deal” program during his second term.

This chapter looks at the nature of exceptions to copyright infringement (e.g., fair use, fair dealing) and at how copyright user rights are often assimilated to exceptions to copyright infringement. It discusses whether copyright user rights should be better understood as a rule of interpretation of exceptions, rather than giving rise to ‘rights’ as the legal meaning of that term suggests. It further investigates the consequences of exceptions to copyright infringement being characterized as rights or privileges and whether they are (or should be) mandatory (i.e., that exceptions may not be waived by contract). It looks at the mechanics and shortcomings of exceptions to copyright infringement as a regulatory tool. The chapter concludes that exceptions are probably better characterized as privileges than rights, and that, unless expressly stated otherwise, they may be waived by contract. This account of exceptions to copyright infringement reveals a weak strain of copyright user rights.

This chapter focuses on the common law of the employment contract and asks, given the decline in the significance of collective bargaining, whether it can offer a meaningful conduit for employee voice in the workplace. The implications of judicial recognition of inequality of bargaining power in the employment relationship are considered along with the emergence of obligations of fair dealing. The view is taken that the employment contract offers a considerable degree of procedural protection and also guards against arbitrary or discriminatory treatment. It fails though to ensure that the substance of the bargain is equitable and is subject to several limitations and vulnerabilities.

Covering the period from 1945 to 1960, this chapter examines a series of clergy education initiatives that attempted to build support for libertarian economic ideas. Launched by conservative activists and organizations, these programs sought to undermine clerical support for the New Deal–era welfare state, but they mostly ended in failure. With financial support from the wealthy oil executive J. Howard Pew, organizations like Spiritual Mobilization and the Christian Freedom Foundation spread the gospel of free enterprise using newsletters, radio broadcasts, and sermon contests. But polls funded by Pew himself found they had little impact on the political or economic views of rank-and-file ministers. The National Association of Manufacturers’ (NAM) clergy-industry program was marginally more successful, though its organizers were similarly disappointed at their inability to stoke clerical opposition to the New Deal/Fair Deal agenda. The chapter concludes with a series of observations on why Christian Libertarianism gained little traction with either ministers or lay people during the 1950s.

The expression ‘good faith’ has several meanings. For the purposes of this chapter, it means that a contracting party must act in a manner which the contracting party reasonably believes is honest, and his or her conduct must be such as would be considered to be fair and reasonable by right-thinking people engaged in the same business. Recently, English law has been resistant to a general or overarching concept of good faith, but this was not always the position. This chapter traces the evolution of good faith in English case law, from the eighteenth century to the present day, and concludes by looking ahead to what the future might hold. The author argues that incremental development of some principles of good faith would strengthen the influence of the common law on the development of EU law and would also be in keeping with the important role of the independent judiciary.

One of the lesser known details of Indian copyright history is that the first copyright legislation introduced after Independence in 1955—the Copyright Bill, 1955—was actually in violation of India’s obligations under the Berne Convention for the Protection of Literary and Artistic Works. A determined lobbying effort led by the famous poet Ramdhari Singh ‘Dinkar’ and his contemporaries forced the Government of India to roll back these contentious provisions. The next decade saw India lead a developing country effort to reform the Berne Convention in order to make books more accessible to the people of the developing world. Although, the Indian effort to reform Berne Convention led to mixed results, the very same issues have come to the fore in the now famous University of Delhi photocopy case. This chapter explores the politics, economics, history, and law on the issue of copyright law and access to knowledge.

It is a settled principle of contract law that a contracting party must perform her contractual duties in good faith. The meaning of the duty of good faith is complex. At a minimum, to be in good faith an actor must have acted in a way that she believed was proper, which is a subjective test. This subjective test is overlaid with several objective tests. First, it is not enough that an actor actually believed that her conduct was proper; her belief must be honest in the sense that it has some basis in morality. Next, although an actor's belief need not be reasonable to be in good faith, it must at least be rational. Finally, the duty of good faith includes the observance of reasonable standards of fair dealing—another objective test.

In recent years there has been growing interest in the concept of a relational contract which has been defined as a ‘contract that involves not merely an exchange, but also a relationship between the contracting parties’. (MA Eisenberg, ‘Relational Contracts’ in J.Beatson and D Friedmann (eds), Good Faith and Fault in Contract Law (OUP, 1995) 296.) The chapter aims to provide an indication of the changes to common-law doctrine that might come about given the categorization of the employment contract as relational. The chapter suggests what a judicial construction of a relational contract would look like. This includes the concept of fair dealing and reciprocity and self-help remedies.