Diss. Jur. Bern.

Thesis (Ph. D.)--University of Wisconsin, 1974. / Includes bibliographical references (leaves 339-348).

Thesis--Paris. / "Bibliographie:" p. [v]-vii.

Zugl.: Kiel, Universiẗat, Diss., 2003.

Thesis (M.S.)--Montana State University--Bozeman, 2007. / Typescript. Chairperson, Graduate Committee: Vincent H. Smith. Includes bibliographical references (leaves 87-89).

M.Phil.

LL. M. (Intellectual Property Law) / Throughout the history of mankind and the countless ages in which law has found a voice, there has existed a need to achieve and maintain a balance between conflicting interests. In this everchanging and dynamic society the need for a balance is paramount. Although it may seem that the various conflicting interests are predominately of a private nature, many of these conflicting interests have consequences that have a salient impact on social welfare. One such branch of the law in which conflicting interests between various interested parties surface is patent law, and the controversial issue of software programs. The current socio-economic environment has experienced exponential technological growth, with substantial advancements not only in the field of hardware but also in the field of software. However, this same rapid growth is not always true when it comes to the law which, in certain fields may be remarked to unfortunately be lagging behind in the degree of protection it affords. The consequences of this may be dire in the case of technological developments, for it is the protection afforded that is in part responsible for the advancements in technology. This once again draws into account the fine line in the balance of rights between various conflicting interests, namely the protection of an individual’s creativity versus that of social welfare. In certain cases, regardless of how innovative or unique certain discoveries or developments may be, if they are important to the social welfare, then an individual’s rights or need for protection must give way. Having said this, one needs to evaluate where software programs fall within this delicate balance of rights. The legal position with regard to software programs in South African intellectual property law is found within the legislation. Namely, the protection afforded to software programs in the Copyright Act,1 and the exclusion of protection in the Patents Act.2 In light of this, why software programs are expressly excluded from protection in the Patents Act will be analysed. It will also be determined if, and to what extent, the Patents Act can be said to afford protection to software

Magister Legum - LLM / South Africa

Suspension as a form of an unfair labour practice can be of two categories. There could be a situation where an employer suspends an employee as a disciplinary sanction after an employee has committed an act of misconduct. This is often referred to as a punitive suspension. An employer may also suspend an employee pending a disciplinary hearing. In this case the employee has not yet been found guilty because the investigation into the alleged misconduct is still on going. The employee may be suspended as a way of preventing him from interfering with the investigation process into the alleged misconduct. This form of suspension is often referred to as a preventative suspension. It is very important to note the distinction between the two forms of suspension because the processes that are followed when effecting them are different. Failure to acknowledge the difference might result in a situation where an employer might be effecting a preventative suspension but the consequences might be that of a punitive suspension and end-up being an unfair labour practice. Suspension is a disciplinary measure, and it is important to note that in the event that the employer elects to implement a suspension, its conduct must be disciplinary in nature and intent and should be corrective rather than punitive.Unlike dismissals where the Code of Good Practice of the Labour Relations Act, No 66 of 1995 provides guidance on what constitutes procedural and substantive fairness, there are no guidelines on what constitutes procedural and substantive fairness when it comes to suspensions. This has resulted in a situation where suspension is treated as a minor aspect of disciplinary measures that is frequently abused as it is often on full remuneration. This, however, does not allow an employer to suspend employees at will, without merit and without following proper procedure. Suspension could have severe adverse effects on employees and often affects their reputation, goodwill, human dignity, self-esteem and the right to meaningful association and work. It is for this reason that suspension must be effected in a way that is procedurally and substantively fair.Punitive suspension is implemented as a sanction and is often without pay and is a last resort prior to dismissal. Preventative suspension occurs prior to a disciplinary hearing, with the aim of temporarily removing the employee from the workplace to enable the employer to conduct a proper investigation without interference. Unfortunately preventative suspensions are often abused by employers in that they protract over extended periods of time, making the preventative suspension punitive in nature, to the extent that the courts have been forced to intervene and lay down stringent requirements that must be met in order to prevent such abuse.There are various requirements for suspension which range from the intention of the employer, the audi alteram partem rule, sufficient reasons prior to suspension to period of suspension. Most employment relationships are governed by disciplinary codes or collective agreements, which often place limitations on the concept of suspension. Some codes provide for special leave at the option of the employee, which the employer often abuses instead of utilizing the preventative suspension option. This, however, is more often than not to suit a political agenda.In the event of non-compliance by an employer, an employee is not left remediless. An unfair suspension constitutes an unfair labour practice and an employee has the right to refer such dispute to the relevant labour forums like the CCMA or the relevant bargaining council. Employees are cautioned not to refer their disputes to the Labour Court for final relief, but rather to only approach the courts for urgent interim relief, like interdicts.

In response to concern about the model of trade and investment liberalization reflected in existing and proposed trade and investment agreements (TIAs), efforts have been made to balance the economic orientation of trade with social considerations. One proposal that has garnered significant attention in this regard is the social clause (SC): a set of labour rights to be attached to the text of TIAs. Although the idea of including labour rights in TIAs seems laudable, significant opposition to the particular SC recommendations developed by Canadian and international labour organizations has emerged. Some critics charge that the addition of a clause to TIAs will not only prove unproductive, but will actually serve to legitimate problematic aspects of these agreements. Others insist that the content of the SC will exacerbate existing inequalities in the international trade order. In this thesis, I reconstruct debate over the SC to determine whether this instrument can effectively contribute to the realization of a more socially responsible trade and investment regime. Using proposals advanced by the Canadian Labour Congress as a key point of reference, I argue that there are resources available to clause proponents to respond to claims that the SC is an inadequate approach to the goal of resisting the current model of liberalization. As such, there is room to resist the conclusion that the SC should be rejected in its entirety. While it may be possible to preserve the SC approach, however, the same cannot be said about the content of current clause proposals. Criticisms of the narrow range of issues covered by existing SC recommendations clearly demonstrate that a rethinking of the content of the clause is not only warranted, but also necessary. Accordingly, I conclude by exploring three considerations that should be factored into the development of what would constitute a more adequate SC: first, existing patterns of inequality in the international trade system; second, the range of issues addressed by the clause; and third, the location of the clause within the context of the international trade regime. / Graduate and Postdoctoral Studies / Graduate