This article explores the issue of the ownership of teaching materials from a comparative law perspective, the legal systems invoked being Sweden, the United Kingdom and the United States. The ownership of teaching materials has become a more compelling question as teaching materials become more digitalized and more easily rendered into commercial assets. A shift in approach by certain educational institutions with respect to this issue of who owns the rights to teaching materials has been underway during the past decade. As teaching materials have become more and more digitally packageable and reproducible, to the extent of even having virtual classrooms, the issue of ownership now takes on different legal as well as financial values.
The ownership of rights to teaching materials touches upon several different areas of law: employment law, labour law, contract law, constitutional law, academic freedom and intellectual property rights law, and to date is not definitively resolved either in custom, agreement or by law in any of the three jurisdictions chosen. The conclusion here is that given the interests involved, the integrity of authors as well as the academic freedom of teachers, a constitutional approach transcending the employment and labour law approaches needs to be taken to guarantee the greatest amount of academic freedom. The directed work approach is found to best balance the different interests involved.
In this volume celebrating 50 years of information technology at the Department of Law, Stockholm University, it is fitting for two reasons to examine the interplay between information technology and academic freedom during this ground-breaking period for. First, without academic freedom, the legal academy would never have in general developed much beyond traditional Roman law subjects such as the law of obligations, and definitely not to include something as cutting-edge as information technology already in the 1970’s. The second is that information technology has changed the faces of both teaching and research, and thus the premises for academic freedom, both facilitating and obstructing its exercise by legal scholars. Two specific challenges raised to academic freedom will be addressed at the end, one with respect to teaching, the copyright to teaching materials and the other with respect to research, the protections of extramural utterances, both as facilitated by digitalization and social media.
This article begins by briefly exploring the history of academic freedom, university research and teaching, as well as its modern legal protections, then goes over to the impact of information technology on academic freedom in four legal systems, the US, UK, Germany and Sweden. The need for the law regarding academic freedom to keep up with the technological-advances made in the past half century is not only self-evident, but also integral to future academic endeavors.
In Chapter 12, ‘Access to Justice’, Laura Carlson argues that stronger access to justice rights need to be in place in order for individuals in general to be able to partake of the social welfare rights and protections existing under Swedish legislation as well as collective agreements. Many of the social welfare benefits in Sweden are based on employment twice over. First is the government policy that employment itself should be basis for certain social welfare benefits (arbetslinje), including state benefits such as parental leave pay, sick pay, unemployment insurance and pensions. Any state social benefits granted under these state schemes are income-based. Where an eligible income is not present, subsistence levels are in place for most state social welfare benefits. The dividing line between subsistence level support and the social welfare protections envisioned by the lawmaker is gainful employment. And to have gainful employment, access to justice must be facilitated in order for individuals to be protected against unlawful employment discrimination. In the Swedish context of employment law, these individualistic rights, access to justice and protections against unlawful employment discrimination are juxtaposed against a labour law model based on corporatism-collectivism and an understanding of justice and law formed by Scandinavian Legal Realism. This chapter explores this juxtaposition, first setting out the collective Swedish labour model, and then against this background, examining access to justice issues in the context of employment discrimination.
This chapter explores reasons for why discrimination law is not successful in Sweden, despite Sweden having legislatied all the requirements of EU law. The chapter first focuses briefly on teh Anglo-American historical development of the concept of access to justice and then examines how access to justice has been addressed in Sweden. Though the differences of approach are often explained as simply that of common and civil law, this chapter demonstrate sthat they are instead anchored in the interplay between civil society, government agencies, courts and lawmakers, as well as a concept of law (regardless of whether judge-made or statutory) as individually enforceable or simply policy declarations.
This chapter traces the journey of unlawful discrimination perceived of as a non-issue in Sweden to the current parliamentary understanding of protection against unlawful discrimination as a fundamental human right now buttressed by legal regulation. This journey has been to the greatest extent influenced by events outside of Sweden, namely the Europeanisation and internationalisation of human rights that has successively been gaining ground since World War II. Arriving at the current Swedish parliamentary perception – that protection against unlawful discrimination on the basis of sex, transgender identity and expression, ethnicity, religion or other belief, disability, sexual orientation or age, is a fundamental human right – has been neither a self-evident, nor a linear, path in Swedish law. The Swedish courts, however, cannot yet be seen as embracing this same development, rather instead invoking a more liberal analysis when deciding such claims as seen below. As evidenced by these examples, we now have the law in the books, but arguably not yet the law in action when it comes to unlawful discrimination protections. The gap between the intent of the legislator and the application of the discrimination law by the Swedish courts is the focus of this chapter, with particular attention paid to access to justice issues as one way of reducing this distance.
American Business Law - A Civil Law Perspective is written to give lawyers trained in civil law a basic overview of the American legal systems, as well as certain fundamental areas of the law.
The systems discussed in Part I include the common law, the separation of power as well as the checks and balances between the different state institutions, federalism, as well as civil and criminal procedure. Part II explores property (including intellectual property), contracts (including sales and CISG), torts and the law of business enterprises.
The extensive agency law and power existing at both the federal and state levels is addressed in Part III, specifically in the areas of employment and labor law, consumer law, environmental law, antitrust and securities law. The concluding chapter addresses the role of lawyers in the American legal systems.
Based on the Swedish Land Code, An Introduction to Swedish Real Property Law gives an overview to helps foreign students and practitioners better understand the real property system in Sweden. The book focuses on the creation, assignment and registration of real property rights, including user rights such as landlord/tenant rights.
Human history is marked by group and individual struggles for emancipation, equality and self-expression. This first volume in the Brill Research Perspectives in Comparative Discrimination Law briefly explores some of the history underlying these efforts in the field of discrimination law. A broad discussion of the historical development of issues of discrimination is first set out, looking at certain international, regional and national bases for modern discrimination legal structures. Several of the theoretical frameworks invoked in a comparative discrimination law analysis are then addressed, either as institutional frameworks or theories addressing specific protection grounds. This first volume is dedicated to setting out an introduction to the field of comparative discrimination law to give the reader a platform from which to undertake further reading and research in the compelling topic of comparative discrimination law.
This article traces the Swedish journey with respect to the treatment of discrimination issues. The current Swedish parliamentary understanding of protection against unlawful discrimination as a fundamental human right, can be seen as beginning in a period of no regulation, going over to a soft law approach (on both international and national levels) and then to a progressively hard law approach. This journey can be seen as having been completed by the Swedish parliament but arguably not yet whole-heartedly by the Swedish courts. This change in treatment was brought about mainly due to external forces, namely EU membership and the Europeanization of discrimination protections. Coming to the current Swedish parliamentary perception, that protection against unlawful discrimination on the basis of sex, transgender identity and expression, ethnicity, religion or other belief, disability, sexual orientation or age, is a fundamental human right, has been neither a self-evident, nor a linear, path in Swedish discrimination law. The point at which this parliamentary perception is given the same effect by the Swedish courts can be seen as the end of this journey.
When enacting the most recent Discrimination Act (2008), the Swedish legislator deliberately removed the term “race” from the list of unlawful discrimination grounds. According to the legislative preparatory works to the act, this was to demonstrate that a biological concept of race is unacceptable: “[T]here is no scientific basis for dividing human beings into different races and from a biological perspective, consequently is there neither any reason to use the word race with respect to human beings.” The Parliament also stated that the Swedish Government is to act in the international arena towards that the word “race”, as used with respect to human beings, to as great a degree as possible is avoided in official texts. The Government was also to review the extent to which the term “race” occurs in Swedish laws not based on international texts, and as far as possible, suggest a different term. To date, no such alternative term has been proposed, either by the Parliament or the Government. This “post-race” perspective by the Swedish Parliament can be juxtaposed against the judgments of the Swedish Labour Court (Arbetsdomstolen) in cases raising claims of unlawful ethnic discrimination. In one almost contemporaneous case, by way of example, the Labour Court found that statements by fellow workers, calling the plaintiff names such as Blackey, did not amount to unlawful ethnic discrimination in the workplace as the Court found that the plaintiff had consented to this banter. The paradox resulting from these examples appears irreconcilable, with the Parliament assuming a protection that the courts are not giving. However, when evaluating this through the lens of Critical Race Theory, though still not desirable, the paradox becomes more understandable. Part One of this article sets out the legal theoretical framework addressing race based on Critical Race Theory. Part Two explores the treatment of “race” as defined by these theories with respect to religion, immigration and ethnic origins in the Swedish legislation and the case law of the Swedish Labour Court. The disparity between the application of discrimination protections by the courts and the intentions of the legislator in removing the word “race” from the legislation is explained by CRT as part of the ongoing historical process of not seriously addressing the structural discrimination existing in society.
This chapter focuses on combating unlawful discrimination; a battle firmly entrenched in both Swedish and EU law. Hand-in-hand with eradicating unlawful discrimination are issues of access to justice, the ability of individuals to seek and obtain effective remedies for unlawful discrimination through institutions of justice. The focus of this contribution is on three vital aspects necessary for disadvantaged communities to have access to justice. The first is effective, proportional and dissuasive remedies for discrimination claims. Closely tied to this are aspects two and three, whether the Swedish justice system is financially accessible for discrimination plaintiffs and whether legal counsel is available to such plaintiffs. This contribution examines the institution of discrimination damages (diskrimineringsersättning) as newly created in the Swedish 2008 Discrimination Act, both as intended by the legislature to increase access to justice and as applied by the Labour Court (Arbetsdomstolen, ‘AD’). The intention and application of the law will be assessed against an access to justice analysis focusing on the award of damages as well as trial costs and fees, and access to legal counsel for plaintiffs.
Isssues of equality have been radically brought to the forefront by #MeToo, Black Lives Matter, The Covid-19 Pandemic and climate justice, in a period of less than five years. The structural discrimination identified in these different contestations has raised more questions than can be answered with the legal treatment of equality. In this sixty-eighth volume in the series, Scandinavian Studies in Law, nineteen authors take up some of these questions, examination equality under the law in the Scandinavian legal context.
The anthology is structured around four different aspets of equality: theoretical and international frameworks for equality, protected grounds, protected areas and enforcement on the national levels.
This chapter presents a historical overview of the concept of academic freedom, and then a comparison of the development and protections of academic freedom in Germany, the United States and Sweden. Not surprisingly, the argument is made here for greater and more explicit constitutional protections with respect to academic freedom.
Academic freedom is a fundamental concept in the world of academia, but despite it being often cited, there is little detail in the law to offer any substantive definition of what it is. Historically, academic freedom has been discussed from three different perspectives, the general freedom of the university as originally a religious corporate body separate from the royal power, the academic freedom of students, and the academic freedom of professors with respect to enquiry and teaching. This chapter focuses on the academic freedom of professors, and this from the legal parameters found in the German, American and Swedish systems.
The disintegration of the Swedish Academy and the subsequent decision not to award the 2018 Nobel Prize in literature are perhaps the most palpable fallouts of the Swedish #MeToo movement. Manifestations in Sweden against sexual harassment had begun already in October 2017. A cascade of over thirty different Swedish hashtags from different sectors followed, signed in total by over 75,000 individuals sharing their own experiences of, or witness to, rape, sexual assault and harassment. The legal aftermath of the Swedish #MeToo movement, aside from a few criminal convictions, has been minimal. The Government dedicated SEK 120 million in the 2019 budget to educate judges, lawyers, police, teachers and students as to issues of sexual harassment and criminal offenses. However, the same pattern can be traced in most sectors, first denial, then shock that such problems actually exist, and then calls for greater educational efforts. Aside from the labor unions, few strong civil society organizations have taken up this issue. And as seen above, one of the Swedish #MeToo hashtags concerned sexual harassment within the labor union movement.
One of the major focuses of European Union law is combating discrimination in order to ensure equal participation in society for all Union citizens. Coming to grips with racism through the law, and the use of the term «race», is problematic for many societies and within the EU, has been left to the member states to resolve in a manner consistent with the traditions and legal systems of the member states. This article examines the Swedish approach to the use of the term «race» through the lens of Critical Race Theory (CRT). This legal theory explains many of the inconsistencies in the Swedish legal approach to racial discrimination. The most dramatic of these inconsistencies as examined here are those with respect to the intent of the Swedish (and EU) legislator and the case law in which the Swedish Labour Court has consistently not found racial or ethnic discrimination in working life.
In 2010 - from July 25th to August 1st - the XVIIIth International Congress of Comparative Law took place in Washington D.C. This book contains the outcome of the Congress concerning "The Prohibition of Age Discrimination in Labour Relations." The relevance of age discrimination as a topic increased significantly over the last decade, and the Congress gave the participants an opportunity to present and compare their experiences with age discrimination in employment relationships. The book consists of 23 reports - written in English and French - by national experts. These reports address the most relevant questions with regard to age discrimination. They deliver extensive insight into the different countries' situations and their provisions against age discrimination. The book compares inter alia legal regulations, the protected age-groups, and procedural aspects. It begins with the General Report, which provides an introduction to the subject and evaluates the results of the national reports.
women, night work, breast feeding, maternity leave, parental leave, maternity pay, parental pay
The question can be raised whether there is a need in Sweden to work with issues of equal pay. The gender wage gap (GWG) statistics in Sweden are fairly consistent. According to the OECD gender wage gap 2014, the Swedish GWG is about 14%. According to Eurostat 2016, the Swedish GWG is 13.3 % (placing Sweden 10th among the 28 EU member states). Causes for the Swedish wage gap of 13.3% have been analyzed as 8 % due to occupational segregation and 2 % public employment. All indications point to the situation that women are mostly paid the same as men for the same work, but that pay equity issues, equal pay for comparable work are not as squarely addressed, with unions often representing male-dominated or female-dominated sectors in wage negotiations, basically reinforcing pay inequity as seen with from Swedish midwives cases discussed below. The recent Swedish legislative initiatives with respect to equal pay are compared here is the recent UK and Icelandic legislative initiatives concerning equal pay and greater transparency as to wages.
Achieving economic equality between men and women is a challenge to every country. The approach taken politically and legally in Sweden is to encourage a greater economic independence of women from the family through paid work, as well encouraging men to assume a greater share of unpaid work, particularly parental leave, resulting in a lessening of the double burden of work for women. These efforts have made within the context of the parameters of the Swedish model with respect to labor, in which the preferred mechanism of resolution is agreement between the social partners and not legislation. To this end, the Swedish collective agreements have been analyzed specifically with respect to taking parental leave. The other parameters in the area of sex equality applicable to the Swedish system are those as defined by Community law, specifically the equal treatment and equal pay directives, against which the Swedish regulations as well as case law applying such are assessed.
This work takes the Swedish approach to the problem of economic equality and compares it to the approaches as found in EU, UK and US law. In the UK, there has been a recent emphasis on a family friendly workplace, which is to be achieved at least in part through flexible working. The American approach has focused on discriminatory behavior as a societal phenomena. Comparisons to these two national systems are interesting also from an industrial relations aspect, as Sweden is the most unionized at 80 %, followed by the UK and then by the US at only 15 %.
The findings of this thesis suggest that Sweden may need to reassess its approach to equality between the sexes, as well as issues of discrimination in general, incorporating aspects of access to justice into the legal system, as well as reassessing the role of the labor unions, and the Swedish model, with respect to such questions in general...
This chapter examines the efficacy of the Swedish labour law model with respect to employment discrimination protections against the parameters of access to justice. Consequently, the discussion below begins with defining access to justice, then the Swedish labour law model. The question is whether corporatism can be balanced with access to justice in questions of human rights protections
Abstract: This article explores the issue of the ownership of teaching materials as against the backdrop of the Swedish labour law model. The ownership of teaching materials has become a more compelling question as teaching materials become more digitalized and more easily rendered into commercial assets. The ownership of rights to teaching materials touches upon several different areas of law in the Swedish context: employment law, labour law, contract law, constitutional law, academic freedom and intellectual property rights law, and to date is not definitively resolved either in custom, agreement or by law in Sweden. The conclusion here is that given the interests involved, the integrity of authors as well as the academic freedom of teachers, a constitutional approach transcending the employment and labour law approaches needs to be taken to guarantee the greatest amount of academic freedom. The current system with ad hoc solutions within the labour law system, at times between the social partners, has only resulting in the chipping away of the rights of teachers as well as offering different levels of protection for teachers at different institutions despite most such individuals being ultimately employed by one employer, the Swedish state.
The European Commission’s Proposal for a Directive of the European Parliament and of the Council to strengthen the application of the principle of equal pay for equal work or work of equal value between men and women through pay transparency and enforcement mechanisms is ground-breaking in two aspects: first, in using pay transparency at the EU and Member State levels as a tool to tackle gender based discrimination and gender biases in pay settings; and secondly – and the focus of this article – by placing greater emphasis on procedure to ensure victims’ access to justice through the enforcement of pay claims.This strengthening of access to justice, and the invocation of both collective and individual claims through private enforcement presents different challenges to the Member States depending upon the national industrial relations constellation in place, as well as the roles exercised by Government agencies, equality bodies and non-governmental organisations. In labour markets where, to a large extent, the social partners are involved in wage setting process, such as in the Nordic countries, empowering individuals through access to justice changes the power dynamics of wage-setting. In jurisdictions such as the United Kingdom, where private enforcement has historically been essential, the labour unions have acted as facilitators, for example by funding collective actions concerning pay, as seen with the recent Asda case. The avenues of enforcement as well as remedies also vary greatly between the Member States. Private enforcement is not envisioned in the proposed directive as the only avenue to address equal pay, but as one of several tools that has been underutilised in at least some, if not most, Member States. The role played by equality bodies in relation to discrimination and equal pay across EU Member Statesalso shows great variation: there is little action in some Member States, whereas in others, the equality bodies are a driving force. This role is also challenged by the greater emphasis on private enforcement in the proposed directive, leading ideally to healthier competition between equality bodies, labour unions and individuals with respect to addressing issues of equal pay. A richer case law in questions of equal pay at the Member State level can provide better guidance for the social partners as well as supervisory agencies, creating a stronger basis upon which labour unions and agencies can in their turn be moreactive. First, this article addresses the proposed directive and the transparency requirements, as well asstrengthened access to justice mechanisms. Secondly, it examines effective remedies and sanctions,as well as enforcement, as set out in the Commission’s proposal. Finally, some comments will be given regarding the roles of the social partners, supervisory authorities and monitoring bodies.
The European Commission’s Proposal for a Directive of the European Parliament and of the Council to strengthen the application of the principle of equal pay for equal work or work of equal value between men and women through pay transparency and enforcement mechanisms is ground-breaking in two aspects: first, in using pay transparency at the EU and Member State levels as a tool to tackle gender based discrimination and gender biases in pay settings; and secondly – and the focus of this article – by placing greater emphasis on procedure to ensure victims’ access to justice through the enforcement of pay claims.This strengthening of access to justice, and the invocation of both collective and individual claims through private enforcement presents different challenges to the Member States depending upon the national industrial relations constellation in place, as well as the roles exercised by Government agencies, equalitybodies and non-governmental organisations. In labour markets where, to a large extent, the social partners are involved in wage setting process, such as in the Nordic countries, empowering individuals through access to justice changes the power dynamics of wage-setting. In jurisdictions such as the United Kingdom, where private enforcement has historically been essential, the labour unions have acted as facilitators, for example by funding collective actions concerning pay, as seen with the recent Asdacase. The avenues of enforcement as well as remedies also vary greatly between the Member States.Private enforcement is not envisioned in the proposed directive as the only avenue to address equal pay,but as one of several tools that has been underutilised in at least some, if not most, Member States.
The Fundamentals of Swedish Law offers foreign readers an overview and understanding of the most important aspects of the law and legal system in Swedien, from the legal institutions to more specific topics such as contract law, tort law and family law. These presentations are not exhaustive but rather meant to give the reader a sufficient enough understanding to be somewhat orientated in the Swedish legal system.
The Fundamentals of Swedish Law offers a foreign reader an overview and understanding of the most important aspects of the law and legal system in Sweden, from the legal institutions to more specific topics such as contract law, tort law and family law. These presentations are not exhaustive but rather meant to give the reader a sufficient enough understanding to be somewhat orientated when either faced with a specific legal issue or simply commencing further studies in Swedish law.
This article examines the historical legal treatment of equality and its present day protections against the backgrounds of welfare, democracy and access tojustice. This first part begins with the historical development and legal treatment of equality, democracy and local government, moving over to the Swedishlabor law model and the “folk home” that created the Swedish welfare state, andthen to the current Swedish discrimination legislation. Access to justice is then addressed, seen here as the necessary mechanism for achieving both formal and substantive equality, followed by a discussion as to what type of equality is being protected and promoted by the law.
This paper looks at the question of whether IT restricts or enhances democracy internally within unions.
Sweden was the first country in the world to allow a person to legally change gender in 1972. At the same time, the requirements under the 1972 act for changing gender included being unmarried, a Swedish citizen and infertile. The latter in most cases entailed sterilization surgery, a requirement in place until 2013. A trend can be detected in the Swedish legal system during the period from 1972 to 2013 to a greater focus on individual rights generally, as well as specific attention being given to the legal parameters affecting trans persons. The current law has been amended to a certain degree, such as the removal of the requirement of infertility, but the lawmaker has retained several controversial aspects, the social security numbering system disclosing sex (and age), as well as a gendered concept of legal parenthood based on a mother and a father. New legislative inquiries have been called for with respect to trans issues entailing that Swedish law can be seen as still in a period of flux as to fully recognizing needs and achieving trans legal solutions.
This article examines four national enforcement models with respect to employment discrimination claims against the requirement of enabling legal frameworks for National Human Rights Institutions (“NHRIs”) set out under the Paris Principles. The four models identified are the private enforcement as typified by the United Kingdom, hybrid agency-private enforcement as seen in the United States, the works councils model as originated in Germany, and the corporatist model as found in the Swedish labor law model. This comparative analysis leads to the conclusion that the work of NHRIs in promoting and protecting human rights in the context of employment discrimination protections must rest upon a legal framework that enables individuals and civil society to bring discrimination, and more broadly, human rights claims. States cannot have a monopoly with respect to areas of challenge concerning discrimination, but rather, individuals must be enabled to bring claims and thus contribute to defining the areas of concern regarding discrimination.
Taking readers through the nature and realities of employee voice across the Global North, this book identifies the significance and effects of contexts, cultures, web and social media, and dissimilarity of institutional factors in enhancing employee voice or promoting silence. It addresses general issues affecting employee voice across the globe to give readers an understanding of employee relations that is country-specific. Readers will also have an understanding of the unique nature of employee voice in three continents – thus broadening the readers’ understanding of the subject. Covering employee voice in different countries of Europe, North America and Australasia, each chapter draws out the unique and diverse nature of employee voice in each country. The chapters discuss issues ranging from culture, activities of trade union, institutional factors, web and social media, social and organisational justice and their effects of employee voice.
This book provides an invaluable resource for students and researchers of human resources and international business. It will also be of great interest to HRM practitioners, policymakers and business managers across the globe.
This article addresses the Commission’s proposal as to wage transparency and enforcement mechanisms against the context of the Swedish historical treatment of equal pay, the current legislation and case law, and the wage formation procedures of the social partners. The EC proposal challenges the Swedish labour law model in several ways, with the focus here on wage transparency and access to justice mechanisms as empowering individuals. The Swedish approach has been very much characterized by its corporatist labour law model, while the EU and the Commission have been consistently working more and more towards empowering the individual in discrimination claims generally and here with stronger enforcement mechanisms consistent with access to justice.