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Browsing by Author "Baker, D. J."

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    A Comparative Case Against Criminalizing IP Infringements in the UK and China
    (Cardozo, 2023-07-01) Baker, D. J.; Wang, Xiaoxiao
    In this Article, it is argued comparatively that across the world intellectual property rights have been expanded to the point of absurdity. Beyond lengthy monopoly protections being backed up with prison sentences of up to ten years in both China and the UK, these monopolies have been extended in the UK to cover vague concepts such as publicity rights and performance rights. It is argued that due to the incredible lobbying power of Western multinational corpora tions, China was railroaded into enacting Western-style offenses in order to join the WTO. It is submitted that numerous economic studies have shown that intellectual property monopolies are inefficient and harm the information commons. The harm caused to consumers by inflated prices for medicines and trademarked goods has to be balanced against the right to have an intellectual property monopoly. We aim to demonstrate comparatively that criminal law is not needed to enforce anti-competitive behavior and to facilitate rentiership, and given the communitarian ideals underlying Chinese society it ought not to have enacted intellectual property offenses. Both the UK and China ought to consider repealing these offenses or at least scaling them back.
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    Criminalising privacy in the digital age: The reasonable expectation of not being digitally monitored
    (Sage, 2021-07-21) Baker, D. J.; Wang, Xiaoxiao
    In this essay, we try to present a case for having a general privacy offence. Privacy is about much more than voyeurism involving sexual exploitation. The recent offence of upskirting is too narrow to protect the broader set of privacy interests that exist in plural societies. Current technology means it is all too easy for the masses not only to spy, but to keep digital records of information that belongs to others including their images, voices and correspondence. We shall try to demonstrate that private acts and information that are revealed in an ephemeral sense in a public place should not be put in permanent form and a fortiori should not be published online or in hardcopy. It will be argued that publishing such information without consent or lawful justification is sufficiently harmful to justify making it a crime. It shall be submitted that while human rights law, data protection law and tort law recognise the wrongful harm in privacy violations, the protection offered by these bodies of laws is limited, because they rely on expensive civil litigation that is out of the reach of most. Billionaires can pay for nondisclosure agreements to keep misconduct (such as bullying and sexual harassment) out of the news, but many people with genuine privacy claims cannot afford to seek compensation.
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    Reconceptualising The Role of Actual Causation in Criminal Law
    (Hong Kong Law Journal (Sweet & Maxwell), 2024-07-04) Baker, D. J.
    This article examines two important themes arising from several recent Court of Appeal decisions concerning causation in criminal law. The first theme analysed will be the issue of factual causation in cases where the free, deliberate, and informed act rule is relevant. The second interrelated theme that will be analysed is the requirement not to look to prove factual causation in cases where V has died because D failed to take an opportunity to prevent what was causing V’s death from continuing to cause V’s death. In such cases the duty to act is used to ground liability and thus causal indeterminacy does not allow D to evade criminal liability.
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    Rethinking the Mental Element in Involuntary Manslaughter
    (Sage, 2021-04-01) Baker, D. J.
    In this article, it is argued that the mental element for gross negligence manslaughter requires subjective fault. It is argued that the negligent conduct is evaluated objectively but does not mean a person cannot be subjectively aware of the fact that he or she is engaging in such conduct. Wilful negligence is not contradictory, because the noun refers to the conduct while the adjective refers to the fault of the wrongdoer. It is submitted the ancient authorities strongly support the theory of that grossness in negligence required subjective fault—and was not referring to the noun.
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    Scalarity and Divided Consent: Analysing Rape
    (Edward Elgar, 2023-08-01) Baker, D. J.
    In this essay it is submitted that consent comes in degrees and the wrongfulness and harmfulness of conduct is contingent on the degree of voluntariness underwriting the particular consent decision. A fully free decision to consent changes the normative nature of the act: genuine gift-giving is not theft. Lovemaking is not rape. Partially free decisions to consent can change the nature of the act if it makes the act less harmful and thus less wrongful. Partial consent is not about claiming that the conduct was partially justified, but rather about demonstrating the particular act was less harmful and thus deserving of a less serious crime label than is found in the label rape simpliciter. A second theme picked up in this essay is the issue of conditional consent. It is submitted that breaching a condition (conditions such as D is rich, D is a pacifist, D does not have HIV and so on) of consent to sexual intercourse will not change otherwise consensual nature of the sexual intercourse itself, but it may give rise to criminal liability for the collateral harm caused such as HIV infection.
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