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The Ethical Visions Of Copyright Law, James Grimmelmann
The Ethical Visions Of Copyright Law, James Grimmelmann
Faculty Scholarship
This symposium essay explores the imagined ethics of copyright: the ethical stories that people tell to justify, make sense of, and challenge copyright law. Such ethical visions are everywhere in intellectual property discourse, and legal scholarship ought to pay more attention to them. The essay focuses on a deontic vision of reciprocity in the author-audience relationship, a set of linked claims that authors and audiences ought to respect each other and express this respect through voluntary transactions.
Versions of this default ethical vision animate groups as seemingly antagonistic as the music industry, file sharers, free software advocates, and Creative Commons. …
Intellectual Property In The Twenty-First Century: Will The Developing Countries Lead Or Follow?, Jerome H. Reichman
Intellectual Property In The Twenty-First Century: Will The Developing Countries Lead Or Follow?, Jerome H. Reichman
Faculty Scholarship
This article continues the author's contributions on the subject of intellectual property protection in developing countries, and focuses on how those developing countries with growing technological prowess should accommodate their own national systems of innovation to the worldwide intellectual property regime emerging in the post-TRIPS period, with a view to maximizing global economic welfare in the foreseeable future.
Rethinking The Role Of Clinical Trial Data In International Intellectual Property Law: The Case For A Public Goods Approach, Jerome H. Reichman
Rethinking The Role Of Clinical Trial Data In International Intellectual Property Law: The Case For A Public Goods Approach, Jerome H. Reichman
Faculty Scholarship
This article is a later version of the author's presentation at the Eleventh Annual Honorable Helen Wilson Nies Memorial Lecture March 26, 2008. Clinical trials are currently used to test drugs; however, the risk and cost of clinical trials are increasing so drastically that the clinical trials may become unsustainable. This article evaluates the legal and economic trends of intellectual property protection for pharmaceutical clinical trial data. The protection of clinical trials has become an alternative to patents as market exclusivity encourages the development and testing of unpatentable pharmaceuticals. This author argues that clinical trials should be treated as a …
Of Patents And Property, Michael J. Meurer, James Bessen
Of Patents And Property, Michael J. Meurer, James Bessen
Faculty Scholarship
Do patents behave substantially like property rights in tangible assets, in that they encourage development and innovation? This article notes that historical evidence, cross-country evidence, economic experiments, and estimates of net benefits all indicate that general property rights institutions have a substantial direct effect on economic growth. Conversely, with a few important exceptions like chemicals and pharmaceuticals, empirical evidence indicates that intellectual property rights have at best only a weak and indirect effect on economic growth. Further, it appears that for public firms in most industries today, patents may actually discourage investment in innovation for fear of winding up on …
The Andean Tribunal Of Justice And Its Interlocutors: Understanding Preliminary Reference Patterns In The Andean Community, Laurence R. Helfer, Karen J. Alter
The Andean Tribunal Of Justice And Its Interlocutors: Understanding Preliminary Reference Patterns In The Andean Community, Laurence R. Helfer, Karen J. Alter
Faculty Scholarship
In the European Union, national courts have been key intermediaries in helping to bolster and expand the authority of the European Court of Justice through its preliminary reference mechanism. This article analyzes the role of national judges in the Andean Community, a regional legal system whose judicial institution - the Andean Tribunal of Justice (ATJ) - was modeled directly on its European predecessor. Our analysis is based on an original coding of every publically available national court referral to the ATJ from 1987 to 2007 and interviews with over forty participants in the Andean legal system. We find that the …
Trespass-Copyright Parallels And The Harm-Benefit Distinction, Wendy J. Gordon
Trespass-Copyright Parallels And The Harm-Benefit Distinction, Wendy J. Gordon
Faculty Scholarship
Currently, the elements of a plaintiff’s cause of action for copyright largely follow the tort of trespass to land in that volitional entry (for land) or volitional copying (for copyright) gives rise to liability regardless of proof of harm and without any need for the plaintiff to prove the defendant acted unreasonably. Many scholars have criticized copyright law for following the strict liability model of real property trespass, and have suggested alternatives that would more resemble conditional causes of action such as unfair competition, nuisance, or negligence. In Foreseeability and Copyright Incentives, Professor Shyamkrishna Balganesh argues that copyright plaintiffs …
Trademark Intersectionality , Sonia K. Katyal
Trademark Intersectionality , Sonia K. Katyal
Faculty Scholarship
Even though most scholars and judges treat intellectual property law as a predominantly content neutral phenomenon, trademark law contains a statutory provision, Section 2(a) that provides for the cancellation of marks that are “disparaging,” “immoral,” or “scandalous,” a provision that has raised intrinsically powerful constitutional concerns. The constitutional tensions surrounding Section 2(a), invariably, affect two central metaphors that are at war within trademark law: the marketplace of goods, which premises itself on the fixedness of intellectual properties, and the marketplace of ideas, which is premised on the very fluidity of language itself. Since the architecture of trademark law focuses only …