Digital Commons Network^™

The Economics Of Open Access Law Publishing, Jessica Litman

Jessica Litman

The conventional model of scholarly publishing uses the copyright system as a lever to induce commercial publishers and printers to disseminate the results of scholarly research. The role of copyright in the dissemination of scholarly research is in many ways curious, since neither authors nor the entities who compensate them for their authorship are motivated by the incentives supplied by the copyright system. Rather, copyright is a bribe to entice professional publishers and printers to reproduce and distribute scholarly works. As technology has spawned new methods of restricting access to works, and copyright law has enhanced copyright owners’ rights to …

Creative Commons As Conversational Copyright, Michael W. Carroll

Michael W. Carroll

Copyright law's default settings inhibit sharing and adaptation of creative works even though new digital technologies greatly enhance individuals' capacity to engage in creative conversation. Creative Commons licenses enable a form of conversational copyright through which creators share their works, primarily over the Internet, while asserting some limitation on user's right with respect to works in the licensed commons. More specifically, this chapter explains the problems in copyright law to which Creative Commons licenses respond, the methods chosen, and why the machine-readable and public aspects of the licenses are specific examples of a more general phenomenon in digital copyright law …

Digital Media & Intellectual Property: Management Of Rights And Consumer Protection In A Comparative Analysis, Nicola Lucchi

Nicola Lucchi

Digital Media & Intellectual Property is a comparative research that analyzes the legal and tecnological emerging issues in the Intellectual Property Rights arena. The book provides a comparative and comprehensive analysis of the current technical, commercial and economical development in digital media. It describes the impact of new business and distribution models, the current legal and regulatory framework, social practices and consumer expectations associated with the use, distribution, and control of digital media products. In particular, the author analyzes the anti-circumvention provisions for technological protection measures and digital rights management systems enacted in the United States and in Europe, and …

Rebalancing Section 512 To Protect Fair Users From Herds Of Mice-Trampling Elephants, Or A Little Due Process Is Not Such A Dangerous Thing, Malla Pollack

Malla Pollack

I agree with the basic concept of 17 U.S.C. § 512; to protect Internet functionality, ISPs should have robust safe harbors against liability for their subscribers' copyright infringement. However, the current details of the notice and take down system are both unfair to the general public and unnecessary to the economic health of the United States. I suggest a robust, statutorily established digital fair use right backed by a notice and take down procedure protecting fair users. At a minimum, use of a purchased music file on any of the purchaser's equipment should be fair use. Preferably, all personal non-commercial …

Towards A Feminist Theory Of The Public Domain, Or The Gendered Scope Of United States’ Copyrightable And Patentable Subject Matter, Malla Pollack

Malla Pollack

Feminism does not speak with a single voice. Each voice tells a different story. These stories include attacks on the gendered scope of United States copyrightable and patentable subject matter. The first wave of feminism, liberal feminism, argued that women were as rational and competent as men. It complained about the objective exclusion of women from opportunity. This feminist view might applaud the expansion of copyright and the greater ease of its availability (due to the end of formalities pursuant to the Berne Implementation Act). Liberal feminism, however, finds unacceptable copyright’s exclusion of traditional women’s work: food and clothing. Essentialist …

Strategic Behaviors And Competition: Intangibles, Intellectual Property And Innovation, Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

Intangibles such as intellectual property rights are an increasingly important source of value for businesses today. This increasing importance has significance for the uses of intangibles by companies and the mechanisms and behaviors by which companies extract value from intangibles. The manners in which holders of intellectual property rights wield such rights can play an important role in shaping the effective functioning of intellectual property frameworks. Although intellectual property rights may serve as important tools of innovation, empirical evidence shows that in many industries intellectual property protection is not a primary means by which innovation is protected. Moreover, increasingly pervasive …

The Movement For Open Access Law, Michael W. Carroll

Michael W. Carroll

My claim in this contribution to this important symposium is that the law and legal scholarship should be freely available on the Internet, and copyright law and licensing should facilitate achievement of this goal. This claim reflects the combined aims of those who support the movement for open access law. This nascent movement is a natural extension of the well-developed movement for free access to primary legal materials and the equally well-developed open access movement, which seeks to make all scholarly journal articles freely available on the Internet. Legal scholars have only general familiarity with the first movement and very …

Copyright On Catfish Row: Musical Borrowing, Porgy & Bess And Unfair Use, Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

Treatment of musical borrowing under current copyright standards is far too often inequitable. This is evident in the works of George Gershwin, who, for a number of reasons, was able to borrow freely from existing traditions, works and artists, copyright the works he produced that reflected such borrowings, and then restrict future borrowings and reinterpretations of his works. The operation and the uses of copyright in the specific instance of George Gershwin’s musical practice reflect actual uses of copyright in the musical arena and demonstrates some ways in which current copyright frameworks may not adequately contemplate actual practices of music …

Trips And Traditional Knowledge: Local Communities, Local Knowledge, And Global Intellectual Property Frameworks (Trips Symposium), Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

Intellectual property treatment of traditional or local knowledge is a major issue of contention today, particularly since the implementation of the TRIPs Agreement, which establishes minimum levels of intellectual property protection for members of the World Trade Organization. Discourse surrounding local knowledge is highly charged with accusations of "piracy" from Western countries countered with allegations of "biopiracy" from Third World countries. Flowing beneath the surface of this dialogue are multiple levels of historical experience. Intellectual property frameworks were formed in the nineteenth century during a period when evolutionary views of the development of human societies were paramount. Local knowledge was …

Ten Years Of Trademark Law: Lessons For The Future?, Graeme Dinwoodie

Graeme B. Dinwoodie

No abstract provided.

Towards An International Framework For The Protection Of Traditional Knowledge, Graeme B. Dinwoodie

Graeme B. Dinwoodie

At a seminar organized by UNCTAD and the Government of India in 2002, participants considered how evolving national systems for the protection of traditional knowledge could be supported or augmented by international measures adopted at the regional or global level. The need for solutions on the international level has been discussed in a number of fora. Yet, the effective protection of the holders of traditional knowledge requires that these discussions move in some way toward implementation of working systems of protection.

This short paper, commissioned by UNCTAD for a conference in February 2004, and to be republished in a book …

Ebay Inc. V. Mercexchange, Llc , Malla Pollack

Malla Pollack

Brief argues that Constitution and public policy support a presumption against graniting injunctive relief to a patent holder who is not working the infringed patent. Decision 126 S.Ct. 1837 (2006).

Embracing Price Discrimination: Trips And The Suppression Of Parallel Trade In Pharmaceuticals, Hans Henrik Lidgard, Jeffery Atik

Hans Henrik Lidgard

In December 2005, the WTO responded to the HIV/AIDS pharmaceutical crisis in the least developed world by voting to make the first permanent amendment to the WTO Agreements since their original negotiation during the Uruguay Round. New Article 31bis will amend the TRIPS Agreement to permit compulsory manufacturing licenses in order to facilitate supply of needed pharmaceuticals to those countries lacking the technological capacity to produce these drugs themselves. The amendment reflects a substantial shift in the essential TRIPS bargain, constituting a significant give-back to those developing countries that specialize in the generic production of pharmaceuticals. To date, however, there …

The International Intellectual Property Law System: New Actors, New Institutions, New Sources, Graeme B. Dinwoodie

Graeme B. Dinwoodie

International intellectual property norms are now being developed by a wide range of institutions - some national, some international, and some that do not fit neatly into either category; by bodies designed to address intellectual property; by trade and other bodies; and by actors public, private, and indeterminate. This new wave of international norm creation not only augments a growing body of substantive norms but also raises difficult structural questions about the future development of the international intellectual property system. This essay, a lecture delivered to the Annual Meeting of the American Society of International Law in 2004, is being …

From J.C. Bach To Hip Hop: Musical Borrowing, Copyright And Cultural Context, Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

Musical borrowing is a pervasive aspect of musical creation in all genres and all periods. Copyright doctrine does not adequately reflect the reality of such borrowing. Instead, copyright doctrine incorporates notions of Romantic authorship that assume independent and autonomous authorship and even genius in the creation of original musical works. This individualistic and autonomous vision of musical authorship, which is central to copyright law, has deemphasized the importance and continuity of musical borrowing practices generally. The tension between conceptions of musical production and actual music practice is particularly highlighted in the case of hip hop music, which is now the …

The Role Of International Treaties In The Interpretation Of Canadian Intellectual Property Statutes, Daniel J. Gervais

Daniel J Gervais

The relationship between domestic intellectual property statutes and international law in growing in scope and depth. This paper is a chapter in a book that emphasizes that international law is not only used to interpret domestic law but in fact may itself become a guide for international tribunals, such as the World Trade Organization Dispute-Settlement Body. The Paper considers mostly the role that international norms have played in recent decisions of the Supreme Court of Canada and the Federal Court.

Creative Commons And The New Intermediaries, Michael W. Carroll

Michael W. Carroll

This symposium contribution examines the disintermediating and reintermediating roles played by Creative Commons licenses on the Internet. Creative Commons licenses act as a disintermediating force because they enable end-to-end transactions in copyrighted works. The licenses have reintermediating force by enabling new services and new online communities to form around content licensed under a Creative Commons license. Intermediaries focused on the copyright dimension have begun to appear online as search engines, archives, libraries, publishers, community organizers, and educators. Moreover, the growth of machine-readable copyright licenses and the new intermediaries that they enable is part of a larger movement toward a Semantic …

Patenting Science: Protecting The Domain Of Accessible Knowledge (With R. Dreyfuss), Graeme B. Dinwoodie

Graeme B. Dinwoodie

In this book chapter, we look at the effect of commodification on scientific and technological, as opposed to cultural, activity. After discussing the nature of the commodification debate and the constraints unique to scientific and technological production, we explore ways in which the domain of accessible knowledge could be reconstituted. In our discussion of these strategies, we draw on previous work in which we analyzed (1) various substantive methods for curbing perceived encroachments on the public domain to see how each would fare if challenged under the TRIPS Agreement, and (2) the relationship between the dynamics of domestic legislative procedures …