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  • Sädevirta, Markus (Helsingin yliopisto, 2013)
    This research contains an analysis of the regulations on the conclusion and renewal of fixed-term contracts in the European Union, Finland, France and the United Kingdom. The research analyses how fixed-term employment has been restricted in national regulation before the Framework Agreement on Fixed-Term Work was introduced. Further, the research examines the objectives of the Framework Agreement and assesses how it has been implemented with respect to the limits on the use of successive fixed-term contracts and related sanctions, and thus analyses its effects on national laws in the research countries. The research also examines the relevant case law of the CJEU with respect to the provisions of the Framework Agreement and assesses the extent to which national case law and legal developments after implementation correspond with the legal stance of the CJEU. Based on this analysis, the measures preventing the abuse of successive fixed-term contracts in national laws and their effectiveness in achieving the objectives of the Framework Agreement are assessed. As fixed-term contracts play a central role in the EU employment policy, the research explores whether the stance on acceptable use of fixed-term contracts in EU law and EU employment policy correspond with each other. As the protection against abuse of successive fixed-term contracts laid down by the Framework Agreement is relatively weak, the relation between the Directive on Fixed-Term Work implementing the Agreement and the fundamental rights of the EU is examined to see whether the rights of fixed-term employees should be strengthened by specifying the grounds on which fixed-term contracts can be concluded in EU law. The research methods are legal comparison and legal dogmatics mostly in its prevalent form.The research is divided into six parts. The first part contains the research framework, main research tasks and methodological assumptions. The second part consists of the relevant EU legislation with its evaluation affecting the acceptable use of fixed-term contracts and the development of EU employment policy related to the use of fixed-term contracts. Parts 3-5 cover national law and evaluation in the research framework. The sixth part contains the final remarks, conclusions and summary. The preconditions for using successive fixed-term contracts are not determined precisely in Clause 5 of the Framework Agreement and the fact that the Clause does not have a direct effect as it is addressed to the Member States only and the individual contracts are excluded from its scope, lead to the conclusion that the Framework Agreement has failed in its objective of preventing abuse arising from successive fixed-term contracts, as the recent case law of the CJEU also indicates. When it comes to acceptable use of fixed-term contracts, the research also indicates tension between EU employment law and employment policy. While the CJEU has permitted long sequences, even several years, of successive fixed-term contracts in same job, the purpose of the EU Employment Guidelines is to encourage the use of fixed-term contracts in order to promote the employability of particular groups and to create pathways to permanent employment, but not to permit permanent use of successive fixed-term contracts. These facts support strengthening fundamental rights in EU law in terms of concluding fixed-term contracts. As there are no compulsory requirements regarding the content, level or the scope of sanctions in the Framework Agreement, effective enforcement is almost fully dependent on national law and jurisdiction and the full effectiveness of the EU law remains to some extent incomplete. The effect of Clause 5 as an instrument laying down minimum standards for restricting the use of successive fixed-term contracts in national laws has been extremely modest in the countries researched. In France and Finland, the legislation restricting the use of successive and single fixed-term contracts was already in place, so that no implementation measures were needed. The UK was one of the rare countries which had to introduce completely new measures to implement the Directive. However, the UK legislation implementing the Directive does not suggest considerable improvement in the protection of fixed-term employees. Comparison of the domestic law of the research countries indicates that strict employment security of permanent employment contracts seems to correlate with strict regulation on concluding and renewing fixed-term contracts and sanctioning their abuse. Otherwise, the regulations on use of fixed-term contracts are characterised by strong national legal traditions rather than by the Framework Agreement on Fixed-Term Work, which has not approximated the regulations in this regard. In this sense, the Framework Agreement as a generally determined minimum standard has not managed to improve or create individual rights of fixed-term employees.
  • Walin, Laura (Helsingin yliopisto, 2010)
    The Regulation of human embryonic and stem cell research - a model case for biolaw Research on human embryos has been conducted for forty years, and in vitro embryos undeniably represent the most vulnerable form of human life. Until 1998, embryo research aimed at increasing the general understanding of early human development and at improving the success rate of assisted reproduction. The year 1998 was revolutionary and put human in vitro embryos in a remarkably more vulnerable position. An American research group showed that it is possible to maintain stem cells isolated from human embryos in a laboratory culture for a longer period of time. Stem cells are a potential material for cell replacement therapy for such degenerative diseases as Alzheimer s disease, Parkinson s disease, diabetes etc. This discovery led to a worldwide stem cell hype and forced legislators worldwide to consider and re-consider their position on the early stages of human life. Adding to the complexity, human embryonic stem cell research was quickly linked to cloning techniques. Researchers foresaw that by using cloning techniques it might be possible to produce embryonic stem cells genetically identical to those of the patient s in a process called therapeutic cloning. This could mean the avoidance of the rejection reaction of the cell grafts. This study was conducted in order to clarify the regulation of human embryonic and stem cell research in Finland. Furthermore, it was envisaged that regulation of human embryonic and stem cell research would be a perfect case to enable analysis of the theoretical basis of a novel legal field, biolaw. More specifically, the aims of the research were: To systematize the legal rules affecting human embryonic research in Finland, and based on the analysis, construct the legal position of the human embryo in Finnish law; To analyse the legal restrictions, including restrictions to gain financial profit, for human embryonic research from the point of view of researchers; To compare the regulation of human embryonic research in the Nordic countries against the framework of Convention on Human Rights and Biomedicine of the Council of Europe (ETS No. 164); To study the legal status of tissue donors in Finland, and the possibilities to improve that status; and To construct a theoretical framework of the emerging field of biolaw based on the results on the case of regulation of human embryonic and stem cell research. As parts of the research were targeted to different audiences (national vs. international), the form of an article-based thesis was chosen. Individual topics were covered in six articles, and the summary concentrated on the synthesis and construction of biolaw. The main legal sources studied were the national legislation of Finland, Sweden and Norway, the Convention on Human Rights and Biomedicine of the Council of Europe and preparatory works of the mentioned legislation. The literature review was limited to legal articles published for an international audience and to the relevant national sources. Article I published in 2006 analysed and systematized the legal rules concerning human stem cells and their therapeutic use. One of the main findings was that, while Finland had fairly recently enacted legislation concerning research on human embryos (Medical Research Act 488/1999), the law was already outdated. The main problem detected was that the definition of human embryo is linked to fertilisation in the Act, which leads to the fact that the Act does apply to entities resulting from therapeutic cloning. The implications of the Tissue Safety Directive (2004/23/EC) to national legislation were also studied, and it was observed that by the time of writing, the amendments required by the Directive had not been made to the Act of the Medical Use of Human Organs and Tissues (101/2001). These would mainly relate to the establishment, accreditation and control of tissue establishments. These changes were implemented May 2007. As for therapeutic use of stem cells, it was noted that the European Commission proposes to consider them as advanced medicinal therapies in order to bring them under the medicinal products legislation in the European Community. The resulting Regulation (2007/1394/EC) has been in force since 30 December 2008. Article II of the thesis concentrated on analysing in detail the legal status of embryo under the Finnish law after the passing of Assisted Reproduction Act (1237/2006), which finally completed the legal protection of in vitro embryo in Finland. Specifically it was noted that apart from the ban to create embryos solely for research purposes, it appears that the pre-¬requisites for creation of in vitro embryos are not clearly spelled out in the cur¬rent legislation. The wording of the Assisted Reproduction Act was also criticised, as it is easy to get the impression although a false one that if a couple uses donated gametes for assisted reproduction and the resulting embryos are deemed unsuit¬able for that purpose, these embryos cannot be donated to research but are to be destroyed immediately. The basis of the legal status of the in vitro embryo in Finland was also studied. At first sight, because such expressions as create , use and destroy are used in the legislation, it seems that the human embryo should be categorised as an object. Intuitively this is somewhat uncomfortable, though, and a test was made of whether an in vitro embryo could be a legal subject in the Finnish legal order. It seems, however, that this category is fairly impervious to entities other than born human beings. Therefore it was proposed that the human embryo forms a third category between the traditional two categories, being saved from total objecthood by reference to human dignity. Finally, the legal concept of human dignity was developed, suggesting that a reading of human dignity based on the shared values of a given community might provide an answer to questions about the protection of human embryos and the human genome in the context of biolaw. The scope of analysis was changed for Article III, which examined the ambiguity of embryo protection in the Convention on Human Rights and Biomedicine of the Council of Europe (ETS No. 164). The analysis concentrated on the scrutiny of Article 18 of the Convention, and its interpretative latitude was demonstrated: in order to achieve consensus among the parties, the wording of the Article leaves the fundamental definition of human embryo to be determined within national legislation. Hence it is possible that the three Nordic countries studied can have a very different approach to the human embryonic research in spite of the fact that they all have signed the Convention. Norway was found to be most forbidding, since there, even the research on embryonic stem cell lines was banned at the time of publication of the article in 2007. In contrast, Sweden was found to be most permissive, even allowing the creation of embryos for research purposes. Even though this is specifically forbidden in the Article 18 of the Convention on Human Rights and Biomedicine, this was possible because Sweden defines human life forms younger than 14 gestational days as fertilised eggs, not embryos. The legislation of Finland was described in the article to be outdated, and it was referred to the outlaw status of the results of therapeutic cloning. The meaning of the phrase adequate protection of the embryo in the context of Article 18 was also studied. As it clearly cannot refer to the protection of actual research embryos which are destroyed during the process, it was concluded that such measure as ensuring that the embryos are only used for scientifically justified projects for which there is no other alternative research material could be an element of fulfilling this provision. Furthermore, means to ensure that the use of human embryos is minimised in each project and that the personnel and equipment are appropriate for the proposed research could be other factors contributing to the fulfillment of adequate protection on embryos. The other half of the articles concentrated on the issues related to commercialising the results of human embryonic and stem cell research. Article IV put embryonic stem cell research into a larger context of genetic research and presented the related current legislation in Finland for such techniques as biobanks, human embryonic and stem cell research, pre-implantation genetic diagnosis, gene therapy and genetically modified organisms. It was concluded that the regulation of this type of research takes place at four distinct levels, namely: legislation, administrative control, professional self-regulation and public opinion. Of these, administrative measures were shown to be of most importance. The Parliamentary legislation of course lays down the basis for the administrative means, but it is scarce and open to interpretation, whereas licensing measures consider all research projects at a very detailed level. Public opinion has traditionally been silent in Finland, and the level of activity of the scientific community towards the public has also been low. Article V analysed a fairly recent and significant decision of the Enlarged Board of Appeal of the European Patent Office (G 02/06) from November 2008, in which the patentability of inventions that require the use of human embryos was rejected. The Board rejected the claim of the applicant by stating that the wording of the European Patent Convention (EPC) that forbids issuing patents to inventions using human embryos, does not refer only to actual patent claims, but to an invention as a whole, i.e. including all the necessary steps that need to be de facto taken in order to make the product. The Board also considered that any scientific development taking place after submitting the patent application was irrelevant for the evaluation of the current application. In addition, it was noted that the Board of Appeal was once more reluctant to use the ordre public clause of the EPC as grounds for rejecting a patent claim. Since patenting of embryos is so explicitly mentioned in the EPC, it was possible in this case to base the decision on that provision (Rule 28(c)) instead of Article 53(a) of the Convention. The overall importance of the decision for the scientific community was found to be immediate, as the line taken clearly decreased the economic incentive to pursue embryonic stem cell research. And although EPC and the Biopatent Directive (98/44/EC) are distinct legal documents, the case certainly set a precedent for the interpretation of the latter also, since the wording of the embryo clauses are identical. It was foreseen, though, that national patent offices may issue embryo patents that are not in line with the interpretation of the Enlarged Board of Appeal, which may lead to fragmentation of the patent regime in Europe in this regard a situation that EPC was created to correct in the first place. Modern biotechnology produces and uses a lot of human biological material that is potentially economically valuable. It is assumed that somewhere along the chain of action this human material acquires economic value and is owned by somebody. However, it has not been studied how the transition from human tissue to property happens. In the tradition of medical law the donor s consent has been considered essential for the use of human tissue in biomedical research. This was the starting point for Article VI. It was argued that the consent doctrine does not give the donor an adequate role in modern society where human biological material might become a source of income. Instead, it was proposed that tissue donors should be able to claim ownership of the detached tissue and then donate it to biomedical research as a sui generic gift. If the donor so wanted, the gift would only concern the use of the tissue sample while the ownership still resides with the donor. However, allowing ownership of tissue samples would enable the donors to claim compensation if their samples were used against their consent and enable them to give the widest possible research consent if they so wished by giving up the ownership of a sample. In this way, the ownership model would allow tissue donors to become equal actors as compared to the other stakeholders interested in tissue samples. No provisions in current Finnish law seem to invalidate the ownership model, although it needs to be borne in mind that tissue samples, as such, can never have all aspects of property since human tissue cannot be a source of financial gain according to the law. In other words, a tissue sample cannot be a commodity although it is a physical object. By contrast, it was found that the ownership model would not be applicable to in vitro human embryos, which have a special position in the Finnish legal system. Whereas tissue samples are merely detached pieces of an existing human being, embryos have a unique human genome, and hence enjoy special protection due to the human dignity attached to them. This is reflected for example in the fact that one person cannot donate an embryo to research, but the consent of both gamete donors is needed. Based on the results obtained in the individual Articles, a model for biolaw, a legal discipline situated between medical law and environmental law, was constructed in the summary of the thesis. The field would be identified based its regulatory object, namely living material as created by modern biotechnology. The following legal principles of biolaw were identified from the Convention on Human Rights and Biomedicine and the national legislation: respect for human dignity, self-determination, protection of private life, freedom of research, protection of life, banning of commercially benefit from human tissue and the precautionary principle. Legal concepts for biolaw were more difficult to recognise, but such concepts as scientific research, freedom of research, human dignity, research relationship, human, genetic research, gene technology and genetically modified organisms were proposed as legal concepts of biolaw. Finally, it was recognised that it is not desirable to create a new field of law just for the sake of doing it. However, it was argued that if the societal actions lead to a situation where such a field arises, it should not be artificially resisted either.
  • Salojärvi, Juhana (Helsingin yliopisto, 2013)
    This dissertation examines the history of critical legal scholarship of the 1960s and 1970s in the United States, Scandinavia, and Finland. The purposes are to reconstruct the development of critical scholarship, analyze its substance and motives, and compare the critical scholarship of these countries. The United States and Finland are investigated in more detail, whereas the three Scandinavian countries, Denmark, Norway, and Sweden, are examined collectively and more generally. The time frame of the study covers from the mid-1960s to the end of the 1970s. The research was done by reviewing the published legal literature of the time, from which the critical legal literature was sifted. In this study, the word critical means fundamental criticism of the law and traditional legal scholarship, whereas the term alternative refers to scholarship that is less fundamental in its criticism, but which nevertheless endorses alternative methods of scholarship. The method of the study was based on the perspective of legal history, in which a change in jurisprudence is related to changes in society, culture, and scholarship in general. The study consists of three main chapters which discuss the development of critical legal scholarship in the 1960s and 1970s in the United States, Scandinavia, and Finland. Before the main focus, a general introduction to the history of jurisprudence, scholarship, and society is given in chapter two. After the general introduction, chapter three analyzes the development of critical legal scholarship in the United States. A tradition of alternative and cross-disciplinary legal scholarship had already been established by the beginning of the 1960s, but during that decade more scholars became interested in the relationship between law and society as well as between legal scholarship and the social sciences. A more critical movement emerged in the 1970s, which related problems of law to problems in the deep structures of society. This critical movement evolved into the critical legal studies movement in the late 1970s, adopting a broad philosophical basis for its scholarship. The development of critical legal scholarship in Scandinavia and Finland, examined in chapters four and five, was relatively similar to that of the United States. A tradition of sociology of law emerged in the 1960s, which encouraged legal scholars to investigate the relationship between law and society, as well as between legal scholarship and the social sciences. This trend developed into critical legal scholarship when Marxist elements were brought into it in the 1970s. In Finland, legal scholarship was rather conservative at the beginning of the 1960s, during which, however, alternative elements became more popular. By the end of the 1960s, an attack against traditional legal scholarship emerged. A variety of social science elements as well as Marxism were introduced into critical legal scholarship in the 1970s. Legal scholarship transformed in the countries under examination during the 1960s, adopting more elements from the social sciences. As the 1960s turned to the 1970s, sociological jurisprudence turned more towards criticism of law and legal scholarship. The critical movements acquired a more sophisticated philosophical basis and a more radical tone during the 1970s, and eventually they organized into movements of critical jurisprudence. The fundamental characteristics of the critical movements were the same in each of the countries. The most marked difference was that whereas American critical legal scholarship was mostly comprised of philosophical criticism of doctrine and legal consciousness, Nordic critical legal scholarship had more Marxist and politically oriented elements. Finnish critical legal scholarship was the most radical and political because of the conservative tradition of Finnish jurisprudence and the polarized nature of Finnish society. When seen from a comprehensive perspective, critical legal scholarship of the 1960s and 1970s can best be understood as academic counter-cultures which sought to change the scholarship and academic tradition on the one hand and to have an impact on society on the other.
  • Vilanka, Olli (Helsingin yliopisto, 2014)
    This dissertation is an article based dissertation evaluating position of prosumers, authors and corporations in the information society especially from the viewpoint of Article 27 of the Universal Declaration of Human Rights (UDHR). Prosumers are understood as private natural persons who use content protected by copyright for non-commercial purposes. Similarly authors are understood, following the traditional droit d´auteur copyright theory, as individual natural persons creating content protected by copyright. As it has been argued that role of legal persons, or corporations, has increased as it comes to administering copyright, also their position shall be evaluated and compared to rights of authors and especially prosumers. Article 27 of the Universal Declaration of Human Rights, similarly as copyright theory based on exclusive rights, postulates that content should be both created and used. However, significant amounts of illegal uses of content on the Internet take constantly place. Preventing or denying use should not be in the interest of anyone. Thus the main aim of the book is to evaluate whether something prevents use of content on the Internet and to what extent it may be justified from the viewpoint of Article 27 of the UDHR. In this respect the book analyses article 27 of the UDHR suggesting that the right to science and culture as enshrined in its subsection 1 allows use of content. On the other hand subsection 2 of the Article 27 of the UDHR protects essential economic interests of authors. Although subsection 2 of the article 27 of the UDHR does not grant exclusive rights to authors, rights of authors shall be evaluated from the viewpoint that exclusive rights are being applied. In practice this means evaluating possibilities to administer use of content through exclusive rights and in this respect power relations between prosumers, authors and legal persons. Collective administration of rights, position of intermediaries and applicability of platform fees shall also be examined. Main method for evaluation is legal dogmatic method from fundamental right perspective. It could also be described as a traditional legal doctrine approach describing and systematizing legal sources and arguments containing philosophical insight. Regarding systemizing and interpreting norms, Dworkin s theory of rules and principles shall be applied. The book has also an interdisciplinary approach as it compares individualistic droit d auteur copyright theory to basics tenet from the field of communicational studies. The findings indicate that not only prosumers, but also authors seem to have small role as it comes to administering use of content. Instead role of legal persons seems to be more significant. As fundamental rights protect natural persons such as prosumers and authors, but in principle do not extend their scope to legal persons, and especially to larger corporations, rigorous and strict reading of copyright law often causes challenges from the viewpoint of fundamental rights. Thus the book argues that alternative manners but exclusive rights should be considered in order to secure rights of prosumers and authors as it comes to use of content on the Internet. Consequently some legal political suggestions shall be made.
  • Huuskonen, Mikko (Helsingin yliopisto, 2006)
    The study concentrates on the introduction and background motive of technology related change of copyright law as reflected mainly in the Berne Convention due to the technological and economic necessities experienced in the early 20th century. The purpose of this study is to understand a development which has led to the adaptation of licensing regimes that are not based on traditional exclusivity approach. Voice recording, broadcasting, rebroadcasting, and photocopying serve as main examples of the development. Also the impact of internet and mobile technologies are discussed. The method is based on institutional theory of law, and makes broad use of both economic analysis and historical documentation. The problem of the legislator's choice on how to structure copyright law between the two alternatives, exclusive property or liability approach, has risen constantly throughout the 20th century. The main conflict of interest seems to be between the exclusive right of the copyright holder, and the interests of users, that is, both the commercial and end users. The secondary use of copyright material is a rapidly growing form of copyright use. This creates controversies arising in that particular field of commercial use. Exclusivity is often regarded as the essence of copyright. However, the development of communication technology has allowed new forms of use that are not as well directly controllable by the relevant parties as was the publishing and sale of books. The new technology-enabled phenomenon is mass use in its different forms. Mass use means use of copyright protected works in large quantities in a manner that is either impossible or prohibitively costly to trace, identify and bill. This development which is common to practically all technological innovations of the 20th century questions the accuracy of the exclusivity approach to copyright. This study explores technology related change of the copyright institution, and how copyright is developing from a system based on exclusivity towards a system of compensation increasingly adopting elements of compulsory - that is, involuntary - licensing and its variants. Secondly, on a more general level, the study attempts to formulate a conclusion concerning the impact of technological change on copyright. Exclusivity remains the theoretical and logical starting point of copyright legislation and nearly any analysis of copyright, scientific or within legal practice. Anyhow, the 20th century development has introduced a new set of regulations attempting to limit overly powerful legal positions and thus to protect interests relating to development of new technologies and businesses. This has largely taken place by some form of compulsory licensing. The broad use of platform fees is an illustration of this development in its extreme. The origin of this development is in the belief to scientific progress and innovation in the early 20th century (the development motive). The study suggests that a more coherent approach towards copyright may be reached by studying copyright as a system of compensation, rather than a system of full control of the use of copyright protected matter. This also corresponds to the evolving set of beliefs of the copyright ideology. Exclusivity has not disappeared from the overall picture, but shall be reserved to those forms of use where it is applicable. That is, where copyright is directly controllable by the author or other copyright holder without prohibitive overall consequences as to other right holders, users, businesses, or the society.
  • Pirjola, Jari (Helsingin yliopisto, 2013)
    Dark and bright sides of human rights. Towards pragmatic evaluation Human rights are interplay between theory and practice. On the one hand human rights are conventions, rules and standards on the other hand these same conventions and standards receive their meaning in professional practice. An agreement of human rights in abstract level does not provide us with guidance as to what is needed for their implementation in practice. Human rights do not only set limits as they also create opportunities. Thus, in the service of practice, human rights can start to produce good and bad practical consequences depending on the perspective to the matter. My thesis consists of 7 articles and an introduction that complements them theoretically. The seven articles that form the substance of my thesis discuss human rights both from theoretical as well as from practical perspective. The articles can be divided into two different groups, even though they have many common themes. The first two articles analyse, on a rather theoretical level, the operation of human rights in a multicultural world. The second group of articles (3,4,5,6 and 7) discuss the use of human rights in different practical contexts. My study has two levels. On one level each individual article addresses particular research questions and provides conclusions on them (article level). In the introduction (introduction level) the articles are discussed from the theory practice perspective. The seven articles use different legal strategies and writing techniques in discussing human rights as a theory and practice. There are many ways to explore human rights, as different professional or academic contexts and situations require different strategies and languages. I use concepts, techniques and approaches that draw on traditional legal writing and legal analysis, approaches that are affected by more critical legal writing as well as concepts and approaches that are affected by discussions and methodologies in cultural anthropology. The general aim of my research is to discuss dynamics of the interaction between abstract rights and their practical realisation. The operation of rights is also examined from pragmatic perspective. The pragmatic approach to rights is concerned with the practical operation and concrete results of human rights in concrete situations, not with what human rights are claimed to be in the abstract. Pragmatic approach is interested in what kind difference do human rights make in practice, which purpose does human rights language serve and who are included and who are excluded from the protection of rights. From pragmatic perspective the abstract idea of promoting and respecting human rights emerges as overly simplistic, even clichéd, demand as in practice human rights can be invoked in support of almost any purpose or goal.
  • Puurunen, Tapio (Helsingin yliopisto, 2005)
  • Still, Viveca (Helsingin yliopisto, 2007)
    Digital rights management (DRM) systems are increasingly being developed and used in order to protect the commercial interests of copyright holders. These systems have developed over time from singular copy prevention mechanisms towards all-encompassing trusted systems enabling the control of digital content throughout its life cycle and in a multi-media context. The impossibility of effectively controlling the use of the copyrighted work once it has been put on the market can be seen as a fundamental reason for the legal regulation of copyright. Digital rights management systems seem to provide for an unprecedented ability to control the use of copyrighted works from production to consumption, thereby changing the setting for copyright regulation. The principal research question of this doctoral thesis concerns how copyright s balance can be restored considering copyright owners increased power to control use through technical and contractual means, possibly backed up by the legal system. Answering this question requires us first to look into the current regulation of DRM, assessing how the current legislative framework takes into consideration the shift in the power position that DRM offers. Thereafter, the shortcomings of the current legislative framework are analysed in view of the prospective legal dimensions of DRM. This analysis is followed by an assessment of current suggestions for corrective means in the regulation of DRM, which ends in a regulative model proposed by the author. The method used in the research is that of legal informatics and information law. Legal informatics analyses the interrelationship between law and information and communication technologies. In this thesis, copyright is seen as part of information law and more specifically the modern European information policy, which usually is referred to as the common information area . A fundamental principle emanating form this body of law is the principle of free flow of information, which is used as a guiding principle for the regulative model proposed in this thesis. The aim of this thesis is to contribute to the understanding of DRM as an object of regulation within the copyright system and to further the discussion of the proper regulation of digital rights management systems as a part of a balanced copyright regime.
  • Makkonen, Timo (Helsingin yliopisto, 2010)
    A peculiar circumstance characterizes the fight against racial and ethnic discrimination. On the one hand, international legal protection against these forms of discrimination appears to be exceptionally strong. Discrimination on the basis of race is prohibited virtually by every key human rights document. The International Convention on the Elimination of all forms of Racial Discrimination has been ratified by none less than 173 countries. The EU Racial Equality Directive, for its part, has raised the standard of protection to an entirely new level across the EU. On the other hand, racial and ethnic discrimination is still rampant everywhere in the world, including Europe. According to a large-scale survey published by the EU Agency for Fundamental Rights (FRA) in 2009, some 30% of the persons belonging to the surveyed immigrant and minority groups have experienced discrimination on account of their origin in the course of the past 12 months. Other quantitative and qualitative research undertakings have confirmed the high prevalence of discrimination in our contemporary societies. Contrary to popular beliefs and media reports that portray discrimination in terms of relatively rare incidents perpetrated by people belonging to rather marginal extremist movements (neo-nazism, skinheads, extreme right-wing groups), it is argued that contemporary forms of discrimination are recurring, take typically place in the course of everyday life (work, education, leisure), are often subtle (yet significant), and that it is ordinary people rather than extremists that tend to engage in it. Moreover, the study analyses the causes and consequences of discrimination, and concludes that discrimination and the disadvantage it engenders form a vicious circle that is very difficult to put a stop to. The study sets out to analyse the gap between the ideal and the real , the law and the reality. It analyses the contemporary forms of discrimination and how the international and European law attempts to cope with it. The approach is multidisciplinary: research findings from sociology and social psychology are used to analyse contemporary forms of discrimination and its causes and consequences, as well as to assess the effectiveness of the different possible countermeasures. Ordinary methods of legal interpretation are used to examine the current legal response to discrimination. The study concludes that one of the key reasons why the legal protection offered by the international and European legal instruments is not effective is that it relies rather exclusively on an individual litigation based model of enforcement. This model is not particularly effective, because people who experience discrimination face many different hurdles in bringing legal action, in particular with respect to proving their cases. Indeed, only some 18% of the victims of discrimination report their experiences to the authorities or at the organisation where the discrimination took place. Overall, the study argues in favour of a need to engage in active policies for the promotion of equal rights and equal opportunities. It explores tools such as data collection, positive action and positive duties, and analyses how these can be used to promote equality. It moreover analyses and acknowledges the limited effectiveness of also these tools, and concludes that it will likely be the case also in the future that some individuals are equal in law but unequal in fact.
  • Jääskinen, Niilo (Helsingin yliopisto, 2008)
    The Europeanization of Law – Jurisprudential Problems The study’s point of departure is to use the evolution of EU Law as a huge societal experience providing us with insight that enables us to test the tenability of the basic theoretical constructions of analytical legal positivism. The thesis consists of a collection of articles and a summary. The summary forms, at an abstract legal-theoretical level, a rational reconstruction of the themes discussed in the articles. The summary updates the articles and provides a rational “legal-theoretical” reconstruction of the themes addressed in the articles. This reconstruction is based on an orthodox understanding of EU law as an autonomous legal order that is valid as applicable binding law in the Member States but retains its independent character as EU law and is not merged into national law. This entails that Europeanization leads to an asymmetric view of valid law: for national judges valid law is a combination of national and European law; for EU judges, valid law is only EU law. In the summary, the different interpretations that can be given to the concept of Europeanization of law are analysed on the basis of a conceptual framework that makes a distinction between propositional/behavioural and concrete/abstract aspects of law. The framework is inspired by J.W.Harris’s distinction between momentary and non-momentary legal systems and Kaarlo Tuori’s three-level model of law. This leads to a conceptual stipulation that distinguishes between the legal order (concrete/propositional), juridical practices (concrete/ behavioural), the legal system (abstract/propositional) and legal culture (abstract/behavioural.In the context of the legal order the issues discussed include the ultimate rules (Grundnorm,Rule of Recognition) that form the foundations of legal order and the representation of Europeanized law as contextual fields of consistent normative meaning based on both national and European sources. The discussion of the Europeanization of juridical practices addresses such questions as the penetration of European law into national legislation and adjudication. Concerning Europeanization of the legal system the discussion takes up such themes as conceptual divergence between EU law and national law, fragmentation of national law, the metaconstitutional paradox in the EU and the relation between European democracy and EU law.Finally, the chapter on legal culture proposes a hermeneutic understanding of the concept of legal of culture as unarticulated Vorverständniss, and links the discussion of the approximation of legal cultures in the EU to Aulis Aarnio’s theory of legal audiences.
  • Pijetlovic, Katarina (Springer, 2015)
    This dissertation analyses the legal problem posed by the clauses in UEFA Statutes that prevent clubs from unauthorised formation of alternative transnational structures in football. Unequivocally, these clauses constitute restrictions on economic activities of football clubs in their capacity as undertakings contrary to EU competition and internal market laws, in particular, Articles 101, 102 and 56 TFEU that form the core of EU sports law. More contentiously, however, the heart of the analysis lies in the question of justification and proportionality of the restrictions, which could possibly render the restrictive UEFA clauses legal and enforceable. Over the past 20 years, a solid body of case law, legislation and EU policy documents developed a distinct legal discipline that can be referred to as EU sports law and that can facilitate in resolving this question. The essence of EU sports law lies in the custom-tailored application of traditional economic provisions that takes account of the specificities of sport, a concept that has been given constitutional basis in Article 165 TFEU after the Lisbon Treaty amendments. Moreover, the approach to specificity of sport can be traced back to its origins in 1974 Walrave case, and it forms the basis of the crucial notion of sporting exception in the EU law. This study first highlights the problems in the governance of European football with particular reference to power struggles between UEFA and the elite football clubs and the threats of formation of alternative cross-border leagues by the clubs. Thereafter, the study sets out and discerns the principles underlying the application of EU freedom of movement and competition law to legal disputes in the sports sector, contributing several original interpretations of the key sports cases, such as Bosman, Meca-Medina, Bernard, and Murphy. Most prominent contribution of this thesis to the general study of EU sports law, however, is sketching a novel way of looking at the different categories of sporting exceptions through the prism of convergence between EU free movement law and competition law. The quest for convergence revealed a largely streamlined analytical framework in the sporting cases that involve organisational/regulatory rules and rely on public interest justifications. Finally, thus streamlined framework is applied to analyse the question of legality of the UEFA clauses restricting the formation of breakaway leagues. Some of the conclusions that emerge from this analytical process are surprising, in particular those pertaining to UEFA s power on the relevant market for organisational services for transnational club football in Europe.
  • Hellsten, Jari (Helsingin yliopisto, 2007)
    The dissertation comprises four articles which have as a leading theme the relationship between the economic and social factors in EU labour law. The first one, headed On Social and Economic Factors in the Developing European Labour Law discusses EU directives on collective redundancies and transfer of undertakings. The author also criticizes the theory of converse pyramids, according to which the social factors would be generally subordinated to economic factors in EU law. The second article, On the Social Dimension in Posting of Workers , discusses the Posted Workers Directive (96/71) and highlights how it applies within the legal framework set up by the EC Treaty, which also means that a proportionality assessment is applicable to the workers rights under the directive. In the context of the Laval case the author concludes that the ILO obligations of the EU Member States form a valid legal basis for such action in EU law, too, which is based on a combined effect of Article 307(1) EC and general international law. The third article, On the Social Dimension in the Context of EC Competition Law , deals with the interpretation of the relationship between collective labour agreements and competition rules on the basis of the Albany judgment. The immunity of collective labour agreements set up in that judgment is fundamental. The author concludes regarding Article 86(2) EC that it may also cover particular social tasks of general interest. At social security systems this may mean that, as the AOK Bundeskassen judgment shows, certain competition elements included in such systems do not necessarily lead to the application of competition rules. Accordingly, in the Finnish Earnings-Relates Pension Scheme TEL certain inherent restrictions of competition should be regarded as justified under Article 86(2) EC. In the fourth article, From Internal Market Regulation to ordre communautaire social , the author develops a proposal for a new collective labour law paradigm in the EU. It would comprise the leading premises and principles of EU and international labour law: labour is not a commodity (the ILO Constitution), improvement of working conditions (Article 136 EC), respect for EU and international fundamental rights, respect for the European social model (prominent role of collective agreements) and non-discrimination of grounds of nationality. An employer acting against these principles should not enjoy legal protection in EU law. As to the development of collective labour law in the EU, the author adheres to the thesis that in the long run Europeanisation of economy leads to the emergence of a European framework. However, at present it seems to develop essentially through case-law (the Laval and Viking cases).
  • Savola, Pekka (Helsingin yliopisto, 2015)
    This article-based dissertation examines the involuntary role of Internet connectivity providers in copyright enforcement in the EU, and in particular injunctions ordering user-end providers to block access to websites facilitating infringement. The main method is doctrinal legal scholarship supplemented by a socio-legal study of legal policy, seeking answers to the why questions underlying the law. Copyright enforcement measures using providers include website blocking, disconnecting the website or the user, subscriber information disclosure, and notice or graduated response mechanisms. There are also dozens of other options for enforcement, and the IPR holder may select the optimal one(s). In international settings, this can be further optimised by the choice of jurisdiction, the applicable law, and characterisation of the infringement. These provide opportunities for gaming the system . Enforcement proceedings are problematic because typically only the copyright holder and possibly the provider are represented in court. Nobody is responsible for arguing for the users or website operators. The court should take their interests into account on its own motion. Unfortunately, many courts have not yet recognised this responsibility. Even this dual role as both the defender of unrepresented parties and judge is less than ideal and improvement is called for. All the enforcement mechanisms must be compatible with EU fundamental rights, as well as the national ones. A proportionality evaluation procedure is suggested, consisting of identifying the context, the interests of different parties, and applicable principles as well as formulating the evaluation criteria and applying them in a proportionality test. In the test, the legitimacy of the objective, suitability for the purpose, necessity and balancing need to be critically assessed. The underlying goal of copyright enforcement has implications for how the scale tilts. Ineffective enforcement mechanisms can be more easily accepted if the goal of symbolic, educational or politically motivated enforcement is deemed legitimate. However, if the goal is to decrease the impact of infringement, greater efficiency and economically quantifiable results may be required. A proportionate mechanism does not necessarily exist in any particular case. Current enforcement legislation is a product of heavy lobbying by the copyright industry. This has led to the legislators being inundated with copyright ideology and proprietarian bias. In consequence, the legislation fails to take the more general public policy interests and the rights of others into account adequately. The pressure is on rationalising rather than expanding the role of connectivity providers. This background context also calls for a critical approach to interpreting the law. Such an approach might help in achieving more rational and balanced justifications and conclusions.
  • Nyholm, Elina (Helsingin yliopisto, 2015)
    The research question relates to the content of the ex post supervision provisions of the Finnish Environmental Protection Act (EPA) under the currently valid legislation. The study particularly focuses upon single control orders (EPA Section 180), indirect administrative compulsion (EPA Sections 175 through 176) and direct administrative compulsion (EPA Section 181). The objective is to systematize the mutual delineation of the scopes of application of the said provisions. The study utilizes the method of legal dogmatics. Furthermore, the aim is to present views on how the ex post control provisions of the EPA should be developed. A particular methodical characteristic entails the ample utilization of also unpublished case law, primarily in highlighting the problematic issues. For this reason, the study also exhibits characteristics of empirical legal research. This is also why the study is additionally distinctly connected to administrative procedural law, albeit it is categorized under environmental law, or, more precisely, under environmental protection law. The study examines the instances when activities causing the threat of environmental pollution can be targeted with a single control order, when the activities are in breach of the EPA, a decree or regulation issued under it in such a manner that it can be targeted with indirect administrative compulsion, and what are the prerequisites that need to be met for the causing of the pollution to be capable of being addressed by means of direct administrative compulsion, i.e. the immediate suspension of the activities. The study systematizes the obligations contained in the various provisions of the EPA, and those contained in the decrees and regulations issued under the EPA, compliance with which can be enforced by means of indirect administrative compulsion. The pivotal finding comprises the systematization of the provisions of the EPA in such a manner that the situations entitling to the application of the various ex post supervisory measures and the mutual boundaries of the ex post supervisory measures scopes of application become less ambiguous. An additional finding entails the provision of some individual legislative recommendations relating, inter alia, to the regulation of the competent authority and the degree of the obligatory nature at which the prohibitions contained in the legislation should be set.
  • Palo, Sanna (Helsingin yliopisto, 2010)
    This study concerns the criminal regulation of organised crime. The topics discussed in this study comprise the different ways of defining a criminal organisation, international legal instruments applicable to organised crime, elements that constitute an offence under national legislation, and the fact of committing an offence as part of a criminal organisation as a ground for increasing the severity of punishment. This research also examines the grounds for liability laid down in the general part of criminal law, from the point of view of the special nature of the activities carried out by criminal organisations. The central question examined in this paper is whether organised crime is of such nature as to require and justify for criminal law purposes special and more severe criminal regulation, and whether the phenomenon is as uniform and distinguishable from related phenomena as it can be defined in criminal law in a sensible way. This study discusses fairly comprehensively organised crime as a criminological phenomenon, as well as the legal definitions of a criminal organisation. The method of legal dogmatics is mainly used in this study. The aim is to gather together and systematise legal provisions applicable to the regulation of organised crime, to clarify their mutual connections and content as well as to make recommendations for their interpretation. The aim is also to create new concepts, and new ways of analysis to improve the comprehension of relevant issues. In order to consider various options to interprete the regulation of organised crime, the preparative works of national Acts, the requirements and objectives laid down in international instruments concerning the regulation and the application of such regulation by courts are carefully examined in this research. The research material includes over a hundred judgments, mainly issued by courts of first instance or courts of appeal. This research discusses the regulation in force as well as the criminal law theories in the background, but not too strictly based on the systematics of national law. Organised crime is not, from a legal point of view at least not in Finland a systematically structured entity, which would as such create an interesting basis for the examination of the research questions or the evaluation of the functioning of the regulation. The need for regulation and related options are thus also considered from the point of view of criminal policy, criminal law theory and comparative law. It is considered in the study that organised crime is an especially dangerous phenomenon of such nature as to justify the application of specific criminal law solutions to tackle it. When tackling the phenomenon, focus should be put on identifying its special nature as a phenomenon relevant to criminal justice, avoiding however exaggerated rhetoric, which has sometimes interfered with the discussions. It is essential that a criminal organisation is a dynamic, multidimensional, ongoing and structured entity, which involves several participants, who play different roles and interact with each other. The following division into two aspects plays an important role throughout the study: creation of the basis for the operation of a criminal organisation, and individual offences. Creating the basis for the operation aims to build up the operating environment for future criminal activity, and barriers to criminal investigation. In relation to this aspect, the legal issues are related to the legitimacy of criminal liability at the early stages of crime when concrete harm to private or public interests has not yet taken place. The aspect of individual offences is related to the stage in which a criminal organisation starts to prepare and commit individual offences in practice. A major problem in the existing legislation is that criminal law has various definitions for a criminal organisation, whereas it would be advisable to only have one. The criminal regulation of organised crime has been adopted over tens of years, and some provisions are inconsistent with each other. For this reason, it would be appropriate to make an overall assessment of the regulation. For example, the grounds for qualifying offences in relation to committing an offence as part of a criminal organisation are inconsistently linked with certain crime types, not taking consideration of the fact that organised crime is increasing in the field of financial crime. Furthermore, the requirement that a criminal organisation must have a hierarchical structure should be reassessed. In fact, it seems to be an additional criterion set at national level, restricting in Finland the application of the international legal instruments laid down to regulate organised crime. In addition, firmer grounds for liability concerning the leader of a criminal organisation should be established. The subject of this study is a topical issue, as the Council Framework Decision 2008/841/JHA on the fight against organised crime is being implemented by the Member States, including Finland. Therefore, we in Finland also have to consider which measures must be taken to comply with the provisions of the Framework Decision.
  • Koulu, Sanna (Lakimiesliiton kustannus / Kauppakamari, 2014)
    This work, titled Agreements on Child Custody and Contact Legal foundations and proper families , belongs to the fields of child law and legal theory. It focuses on the legal effects of agreements on child custody and contact, spanning both informal agreements within the family and formal agreements usually drawn up in connection with divorce or separation. In Finland, formal agreements are a common way of arranging care and defining the legal custody of children after a divorce. Some tens of thousands of agreements are made each year, and they have specific legal effects comparable to court decisions. The legal analysis of these agreements offers a view into our conceptions of the family as well as into the legal foundations of agreements that concern children. The central issue is two-fold. First, the study surveys the ways in which agreements and their legal effects are justified in our current legal reasoning, in connection with the need for legitimacy in law. Secondly, the work examines the mechanisms that constrain and direct the legal effects of the agreements, in relation to the demands of legal coherence. In more concrete terms, the topic is approached via four research questions. First, how does law characterize custody and access as topics of agreement? Second, what does it mean to speak of agreements or contracts in relation to custody and contact? Third, why are these agreements granted legal effects? Here the question of whose agreements are granted legal effects is also important, since the justifications for the legal effects of agreements have a person-specific dimension. And fourth, how do agreements and negotiation produce and shape family autonomy? The research draws on three partly overlapping kinds of material. The most important source material consists of legal scholarship as well as legislative materials. This material is complemented by literature from the social sciences, especially from critical family studies, which analyses family relations mostly from the viewpoint of social constructionism. These strands of scholarship combine in an analysis of case law from the Finnish Supreme Court, covering 198 prejudicative decisions given mainly since 1980. Seven decisions were chosen for an in-depth reading, in order to examine how and why the agreements were given legal effects in certain difficult cases. The reasons for granting legal effects to agreements can be expressed as justificatory conceptions, i.e. ways of justifying and constraining the legal effects of agreements. These conceptions or schematics are historically contingent and changeable. All in all, five schemas were identified on the basis of the case law: 1) parental autonomy, 2) state power in the service of the common good, 3) factual care, 4) the best interests of the individual child and 5) the participation of the child. The five schemas were then further analysed in a historical context, showing a shift from status-based and essential justifications to more fluid and negotiatory models. This shift can be approached in multiple ways, as it corresponds thematically to the shift from the modern into a late modern mode of thinking. Some of the thematizations offered in the work are based on the contrast between juridico-political vs. normalizing power, examined by Foucault and Donzelot; on the ethics of justice and the ethics of care, as per Gilligan and Held; and on the system-theoretical approach proposed by King and Piper in the vein of Luhmann. Finally, the study discusses the justification and legal impact of agreements as a form of governing and regulating families. It is proposed that the good family is construed as one that is appropriately negotiatory and normal and that the logic of law is effectively co-opted into producing this normalization via the control of agreements. The main contribution of the study is the elaboration and analysis of different justificatory schemas. The best interests of the child are the most well-known of these, of course, but the identification of other, usually less visible schemas can provide tools for more transparent and solid legal reasoning and, paradoxically, can better safeguard the actual best interests of the children involved. Other contributions include the definition of the negotiatory ideal of current family law, as well as a thorough look into the logic of legal decision-making on families and children. Finally, the whole thesis can be fruitfully read as a case study of the theoretical approaches of e.g. Tuori in that it fleshes out the relationships of justification and constraint between the deep structures and the surface level of child law. The work concludes with proposals for legislative work and legal reasoning. It is argued that as factual care has come to be more and more influential in case law over the past few decades, its role in child custody and contact should be considered carefully in legislative work as well. At the same time, the availability of family mediation should be ensured in addition to access to justice in family conflicts. Finally, more attention should be paid to the effects and interpretations of the best interests principle and to the position of the child.
  • Wikberg, Olli (Helsingin yliopisto, 2009)
    The thesis leniency v. kartellit deals with anti-cartel activities within the European union. The main view is that of the European Commission with high emphasis of national (Finnish) and US view and procedure. The thesis contains of two parts. The first part is about the general legal and economical framework regarding cartels and various methods to detect and punish cartel conduct. The latter part deals in detail with leniency programs of both European Commission and Finnish competition authority. The legal background of US antitrust law regarding leniency is included as well.
  • Utter, Robert (Helsingin yliopisto, 2007)
    There are many ways in which a society can define its relationship to the surrounding environment. Opinions vary from one member of society to the next and quite often in conversation it is imaginable that one might allude that questions of good or bad, or better or worse environmental quality are matters of taste and policy, but hardly a subject for serious analytical legal debate. Nonetheless, even a superfluous glance at law books, published case law, or juridical literature seems to indicate the contrary. Environmental quality is at the heart of many legal disputes, and references to the relevance of what the standard of environmental quality should be in a particular case are abundant. Therefore one can pose the question: When and how have statements of the requirements for environmental quality suddenly elevated into the realm of juridical discourse? In this particular study, which is of a jurisprudential nature, this is the pivotal question. With recourse to the theory of speech acts and what could be entitled its jurisprudential offspring, an institutional theory of law, it is possible on a theoretical level to construe an ideal umbrella concept, which in this particular context has been christened the environmental quality norm. This concept is the fundamental model upon which the idea of a normative environmental quality is developed and, according to the underlying argument of the entire thesis, in essence forms the whole structure, function, and logic of all legal regulation by man as to the relationship between him and his surroundings. An environmental quality norm is divided into two sub-norms, the institutive norm and the consequential norm. The first institutionalizes a circumstance or function in the environment, while the second defines the repercussions of interference, be it factual or potential, with the institutionalized circumstance or function. This particular research has focused mainly on the institutive norm, which is the more interesting from an analytical point of view, the consequential norm being of particular interest in debates concerning the choice of environmental policy instruments and arguments pertaining to efficiency. The envisaged theoretical model of the environmental quality norm finds its kinship in regulation relating to nuisance. Many of the central ideas on nuisance developed by the legal minds of past centuries can be transformed, with some alterations, into contemporary legal dogmas. Equipped with these tools, contemporary environmental law has been analyzed in substantial parts of the thesis. The results indicate a clear leaning towards the fact that contemporary environmental law, i.e., basically any legal instrument regulating the relationship between man and his surroundings, is indeed structured upon the very idea embodied in the abstract environmental quality norm and its two components, the institutive norm and the consequential norm.