Law - Doctoral Theses
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Item Private enforcement of European Union Law in the Irish Superior Courts(University College Cork, 2024) O'Reilly, Seán; Ryall, AineThe Court of Justice of the European Union has spoken in strong terms of the importance of effective judicial protection of EU law rights as a core element of an EU legal order founded on the rule of law. To complement the public enforcement system set down in the Treaties, the Court of Justice developed doctrines of direct effect, consistent interpretation and State liability in which breaches of EU law became actionable before the national courts of the Member States. This is referred to as the “private enforcement” of EU law. However, in order to make its vision of the EU legal order a reality, the Court of Justice relies on the willingness of national courts to share and invest in that vision. This thesis explores the development of the case law of the Irish Superior Courts concerning each of the doctrines of private enforcement. The thesis begins with an examination of the direct effect jurisprudence. The elements of this examination are: (i) the evolution of Irish jurisprudence concerning so-called “exclusionary direct effect”; (ii) the approach of the Irish Superior Courts to the prohibition against the horizontal direct effect of directives, including Irish jurisprudence on the concept of an “emanation of the State” and the jurisdiction of bodies other than courts to disapply Irish law which is incompatible with directly effective EU law; and (iii) the relationship between direct effect and the other doctrines of private enforcement. The thesis goes on to examine the consistent interpretation jurisprudence. This examination has a particular focus on the limits of the doctrine of consistent interpretation. First, the jurisprudence in which the Irish courts have explored the interaction between fundamental rights and the duty of consistent interpretation is considered. Second, the Irish jurisprudence on the contra legem limitation to the doctrine is examined. The established Irish law canons of construction have played an important role in framing the Irish courts’ approach to that limitation. Third, the extent to which the doctrine of consistent interpretation has caused the Irish courts to recognise new rules of statutory interpretation is explored. The thesis goes on to examine the State liability jurisprudence. This examination is comprised of two elements. First, I explore Irish jurisprudence on each of the three criteria for State liability, namely: (1) conferral of rights; (2) a “sufficiently serious” breach of EU law; and (3) proof of a causal link. Second, the place of State liability within the Irish tort law system is explored. This analysis considers the Irish courts’ preference for treating State liability as an entirely distinct cause of action choice over fitting it within an existing domestic tort. The thesis then concludes by setting out a number of overarching insights into the enforcement of EU law before the Irish courts. First, in instances where the Irish courts’ approach to a particular aspect of a doctrine of private enforcement has evolved over time, it has been towards greater integration of EU law. Second, while the Irish courts have, generally speaking, embraced the doctrines of private enforcement faithfully, there is evidence that in difficult cases, where the interaction between the doctrines of private enforcement and established principles of Irish law is uncertain, the Irish courts seek to insulate those established principles from the potentially transformative effect which the doctrines of private enforcement may have upon them. Third, the Irish courts’ approach in relation to certain elements of the doctrines of private enforcement has been inconsistent. The ultimate conclusion drawn from the analysis presented in this thesis is a confirmation that the complex process of the integration of EU law into Member State legal systems is not characterised in practice by the blind obedience of the national courts.Item A critical analysis of the intersection between copyright law and artificial intelligence(University College Cork, 2024) Scannell, Barry; Whelan, Darius; University College CorkThis thesis examines the complex and evolving relationship between artificial intelligence (AI) and copyright law, focusing on two main aspects: AI's use of copyrighted works for training purposes (AI inputs) and AI's generation of new works that may be eligible for copyright protection (AI outputs). The central research question of this thesis is: To what extent do existing international, regional and national copyright approaches address the challenges posed by AI-generated works, and how should these frameworks evolve to ensure harmonisation, protect human creativity, and ensure an appropriate balance between protecting human creativity and fostering innovation? To answer this question, the thesis adopts a comparative approach, analysing legal frameworks and challenges in the European Union, the United States, and selected Asian jurisdictions. It highlights the fragmented international approaches to copyright and AI training processes (inputs) and advocates for a harmonised global framework. In addressing the complexities of authorship and ownership of AI-generated works (outputs), the thesis suggests that a possible solution may lie in the introduction of sui generis protections tailored to the unique challenges posed by AI. This thesis is structured around three main chapters, in addition to the introduction and conclusion. Chapter two addresses the question: Can copyright law keep up with AI training needs? It explores the phenomenon of text and data mining (TDM), a core technique through which AI systems learn from vast datasets, many of which contain copyrighted material. This chapter discusses the various intellectual property rights implicated by TDM, including the reproduction right, adaptation right, database right, and rights management information. It evaluates the adequacy of existing and proposed copyright exceptions and limitations for TDM across jurisdictions, analysing whether they balance the interests of creators with those of AI developers. This chapter also highlights the challenges posed by international disparities in TDM exceptions, underscoring the need for harmonised global approaches to AI training. The third chapter considers the questions: What do courts say about AI and copyright? and What are the emerging legal challenges in AI infringement disputes? It provides a critical analysis of judicial decisions relevant to the emerging trend of copyright infringement lawsuits involving AI. Given the United States' advanced stage in AI-related litigation, this chapter focuses on key cases such as Authors Guild v. Google and explores the role of fair use as a central defence for AI companies. European approaches to similar copyright issues are also examined, with a focus on infringement and the broader implications for copyright frameworks. This chapter reveals the growing importance of judicial reasoning in shaping how copyright law responds to AI technologies. Chapter three also examines the new wave of litigation brought against AI developers, exploring how key elements of such disputes such as memorisation, substantial similarity, and the use of copyrighted data are tested within current legal frameworks. This chapter evaluates how these disputes impact copyright law and identifies areas where legal clarity is needed to accommodate AI’s rapid development. Chapter four explores the question: Who owns AI-generated works under existing copyright law? It provides a detailed analysis of copyright protection for AI-generated works, beginning with an examination of the spectrum of AI assistance, from AI as a mere tool to its role as a potential author. This chapter reviews international and national legal approaches to authorship, originality, fixation, and ownership, focusing on jurisdictions such as the European Union and the United States. Particular attention is given to US case law, where AI authorship is being actively debated, and EU jurisprudence on originality, which offers insight into how the EU may approach these issues. By addressing the challenges of defining authorship for AI-generated works, this chapter contributes to the broader discourse on adapting copyright law to account for AI’s role in creative processes. The concluding chapter addresses two key questions: Should AI-generated works get new legal protections? and Is global harmonisation of copyright frameworks possible? It explores whether new forms of legal protection, such as sui generis rights, are needed to address the gaps in existing frameworks. The chapter also considers how such protections might be structured, including their scope, duration, and economic implications. Additionally, it evaluates the strengths and limitations of the EU AI Act in addressing copyright concerns and explores whether Ireland’s legislative approach could serve as a model for broader EU reforms. Finally, this chapter examines the major obstacles to achieving global harmonisation and argues that international collaboration is essential for fostering consistent and equitable standards for AI-generated works. The conclusion of this thesis argues that while existing international, regional and national copyright approaches provide a foundation, they are insufficient to address the complexities introduced by AI. Harmonised TDM regulations, the introduction of transparency and accountability mechanisms, and tailored sui generis protections are proposed as solutions to balance the needs of creators, developers, and the broader public interest. By advocating for a balanced and adaptive legal framework, this thesis provides a pathway for copyright law to evolve in step with the realities of the AI era, promoting innovation while safeguarding human creativity and the integrity of copyright systems worldwide.Item Towards a normative theory of gambling self-exclusion agreements(University College Cork, 2024) Long, Bernard; Donnelly, Mary; White, FidelmaGambling self-exclusion agreements enable a person to have themselves prevented from gambling for some future period. In light of evidence of their effectiveness in helping problem gamblers manage their addiction, these agreements enjoy growing popularity and several jurisdictions now oblige gambling operators to offer self-exclusion to their clientele. Despite this growing popularity, however, self-exclusion has yet to be subject to detailed theoretical investigation, an oversight which has left it bereft of a robust theoretical foundation and may have contributed to dissonance in its operation across jurisdictions. In this thesis, I seek to develop a normative theoretical framework for self-exclusion. As a precommitment device which is initiated by the problem gambler, it is instinctive to view it as primarily based in an exercise of the agent’s autonomy. Though this regard for autonomy is vital to self-exclusion’s value, however, I will argue that it only partially provides its theoretical justification. Rather, viewing self-exclusion through the lens of autonomy generates the self-exclusion problem, i.e. the existence of two conflicting preferences (to gamble and to be restrained from gambling). As this thesis will argue, however, an exclusively autonomy-based conception of self-exclusion cannot justify the precedence afforded to the preference for restraint, upon which self-exclusion’s operation necessarily relies. Rather, the self-exclusion problem can only be resolved in favour of the preference to be restrained from gambling based on a substantive, paternalistic norm. This revelation therefore casts self-exclusion as a device which is characterised by both paternalistic and autonomy-based features. From this finding, I develop a novel framework for conceptualising gambling self-exclusion agreements, namely that they are best conceived of as a form of opt-in paternalism. This innovative model renders self-exclusion’s seemingly conflicting theoretical commitments to autonomy and paternalism intelligible and provides normative guidance for its operation. Having developed and explicated the opt-in paternalism model, I apply it to areas of self-exclusion’s operation which are particularly dissonant across jurisdictions and demonstrate its value in resolving this dissonance and guiding self-exclusion policy according to a robust and comprehensive theoretical framework.Item Rethinking strategies for regulation of cross-border online gambling in the EU: an examination of legal and policy frameworks(University College Cork, 2024) Leahy, Deirdre; White, Fidelma; Irish Research CouncilWhen is an activity a ‘gambling’ activity? This question troubles law, time and again. Gambling is not a static concept, and the internet has fuelled rapid changes in the delivery of gambling services as well as enabling creation of new gambling formats. A volatile gambling environment is nothing new, and despite ingenuity as to format, framework and structure, gambling has always been an activity of change. It tends to be pursued by law, which must find the vernacular and normative means to capture and control new gambling formats. Why should this question concern the EU? When the EU adopted its policy for online gambling in 2012, legislative competence for the gambling sector, both land-based and online, was left to the Member States. In the interim, with development of novel sui generis online gambling and near-gambling formats, new challenges are emerging for gambling law. One of these formats, the loot box, an in-game purchasing structure built on randomised game architecture, blurs traditional boundaries between gambling and games and is proving difficult to regulate. Some Member States have attempted to capture it within existing legal definitions of gambling, and the EU has been called on to act, but there is still a lack of clarity about the role of gambling law in the context of an EU intervention. This triggers many questions: How does gambling law define ‘gambling’? What is gambling law and what are its objectives? What is the ‘fit’ of gambling law with EU law? What are the rationales for conferral of legislative competence for online gambling as between the EU and its Member States? Is there some quality to gambling law that makes it exceptional in this context? What are the legal obstacles to harmonisation? What is the role of the principle of subsidiarity in this debate? These questions are the subject of this thesis, which takes the loot box phenomenon to examine interrelationships between gambling law and EU law. It explores the discipline of gambling law to investigate whether gambling/gaming convergence creates an environment where a conceptualised approach to the principle of subsidiarity in EU law and policy for online gambling can be developed. It undertakes this task by means of a dual enquiry: first it investigates gambling law to unpack its conceptual foundations and normative context, and then it considers these findings against EU legislative competence for the internal market. The objectives of gambling control are weighed against the goals and objectives of the internal market to explore gaps between EU market aims and the public interest rationales that motivate gambling law. This enquiry demonstrates an unmet need to unravel the normative complexity of gambling law as a precursor to EU policy formation affecting the sector. Lessons learned from EU law and policy for tobacco control are explored to understand how the EU can frame its meta-regulatory functions in issues that impact on personal choice, and the nature of the EU’s sectoral regulatory role. Recognising the function of the principle of subsidiarity, this thesis argues that the discipline of gambling law creates a rebuttable presumption in favour of Member State legislative competence for the sector and pleads for normative sensitivity in the debate on gambling/gaming convergence. It concludes that the solution for EU digital policy with impacts on Member State legislative competence for online gambling is to take a structured approach, acknowledging that the challenge is one of diagonal competences. This should accept that the path towards a solution must first respect the polycentric objectives of gambling law, from which the primacy of Member State legislative competence can also be inferred.Item The language rights of Indigenous Peoples within the Russian Federation(University College Cork, 2024) Kavanagh, Elena; Ó Conaill, Seán; Poustie, Mark; University College Cork; Irish Research CouncilThe Russian Federation is one of the world's most multinational and heterogeneous countries. There are 47 officially recognised Indigenous Peoples. The current decrease in Indigenous language speakers in Russia in the last decade threatens Indigenous Peoples' language and cultural identity. This work seeks to assess whether legislation relating to Indigenous Peoples’ language rights in Russia lacks the mechanisms necessary for effective implementation and protection. Furthermore, we will propose solutions to further improve the protection of language rights for Indigenous Peoples in Russia. The thesis will consist of four analytical strands. In the first analytical strand, we examine the development of the international legal system regarding Indigenous Peoples’ rights, originating from the League of Nations. Then, we focus on the main contemporary mechanisms for protecting Indigenous languages and possible future developments with a special emphasis on the United Nations and the Council of Europe systems. In the second strand, we will outline the historical background of Indigenous rights and linguistic diversity in Russia. The historical analytical strand is invaluable for the complete analysis of the Indigenous Peoples’ rights in Russia, as current policy and legislation are largely influenced by Soviet legislation. The third analytical strand is an examination of policies and legislation in Finland that aim to protect Saami Indigenous language rights, with a comparative perspective of existing and potential challenges in Russia. The fourth and main analytical strand seeks to review the contemporary legislative and political situations relating to Indigenous Peoples' language rights in Russia. We examine the status of Indigenous language rights in Russia, identifying the content of State obligations also highlighting the current state of state legislation and implementation of human rights standards within the Russian Federation. The final section of this strand is informed by a comparative analysis of implementation measures taken by Finland in the area of language rights. However, throughout all chapters, we focus on identifying possible legislative suggestions which can effectively improve the level of Indigenous language protection.