Law Commons^™

Is There A New Extraterritoriality In Intellectual Property?, Timothy R. Holbrook

Faculty Articles

This Article proceeds as follows. Part I discusses the state of the law of extraterritoriality in copyright, trademark, and patent, as it stood before the Supreme Court’s recent intervention. This review demonstrates that all three disciplines were treating extraterritoriality very differently, and none were paying much attention to the presumption against extraterritoriality. Part II reviews a tetralogy of recent Supreme Court cases, describing the Court’s attempt to formalize its approach to extraterritoriality across all fields of law. Part III analyzes the state of IP law in the aftermath of this tetralogy of extraterritoriality cases. It concludes that there has been …

Copyright In The Texts Of The Law: Historical Perspectives, Charles Duan

Articles in Law Reviews & Other Academic Journals

Recently, state governments have begun to claim a copyright interest in their official published codes of law, in particular arguing that ancillary materials such as annotations to the statutory text are subject to state-held copyright protection because those materials are not binding commands that carry the force of law. Litigation over this issue and a vigorous policy debate are ongoing.

This article contributes a historical perspective to this ongoing debate over copyright in texts relating to the law. It reviews the history of government production and use of annotations, commentaries, legislative debates, and other related information relevant to the law …

Regime For Use Of Out-Of-Commerce Works, Lucie Guibault

Articles, Book Chapters, & Popular Press

A presentation of the new provisions in European Directive 2019/790 on Copyright in the Digital Single Market on the licensing and use of out-of-commerce works by cultural heritage institutions.

Don’T Steal My Recipe! A Comparative Study Of French And U.S. Law On The Protection Of Culinary Recipes And Dishes Against Copying, Claire M. Germain

Working Papers

Food and gastronomy are at the heart of every culture. In 2010, The Gastronomic Meal of the French was listed as Intangible Cultural Heritage of Humanity by UNESCO. Interest in gastronomy became mainstream in the U.S. starting in the late ‘70s/early ‘80s. The emergence of cooking literature, television cooking, celebrity chefs, and competitive cooking programs have now permeated American and French popular culture like never before. It is also a huge business for restaurants. This article examines the legal status of recipes and culinary creations in U.S. and French law, and what can be done to stop others from copying …

Embedding Content Or Interring Copyright: Does The Internet Need The "Server Rule"?, Jane C. Ginsburg, Luke Ali Budiardjo

Faculty Scholarship

The “server rule” holds that online displays or performances of copyrighted content accomplished through “in-line” or “framing” hyperlinks do not trigger the exclusive rights of public display or performance unless the linker also possesses a copy of the underlying work. As a result, the rule shields a vast array of online activities from claims of direct copyright infringement, effectively exempting those activities from the reach of the Copyright Act. While the server rule has enjoyed relatively consistent adherence since its adoption in 2007, some courts have recently suggested a departure from that precedent, noting the doctrinal and statutory inconsistencies underlying …

Owning The Right To Open Up Access To Scientific Publications, Lucie Guibault

Articles, Book Chapters, & Popular Press

Whether the researchers themselves, rather than the institution they work for, are at all in a position to implement OA principles actually depends on the initial allocation of rights on their works. Whereas most European Union Member States have legislation that provides that the copyright owner is the natural person who created the work, the copyright laws of a number European countries, including those of the Netherlands and the United Kingdom, establish a presumption, according to which the copyright of works made in the course of employment belongs initially to the employer, which in this case would be the university. …

Liability For Providing Hyperlinks To Copyright-Infringing Content: International And Comparative Law Perspectives, Jane C. Ginsburg, Luke Ali Budiardjo

Faculty Scholarship

Hyperlinking, at once an essential means of navigating the Internet, but also a frequent means to enable infringement of copyright, challenges courts to articulate the legal norms that underpin domestic and international copyright law, in order to ensure effective enforcement of exclusive rights on the one hand, while preserving open communication on the Internet on the other. Several recent cases, primarily in the European Union, demonstrate the difficulties of enforcing the right of communication to the public (or, in U.S. copyright parlance, the right of public performance by transmission) against those who provide hyperlinks that effectively deliver infringing content to …

Redefining The Rico Statute: Potential Avenues For Improvement, David Scouten

Senior Honors Theses

The civil application of the Racketeering Influenced and Corrupt Organizations Act (RICO) has been misapplied by the lower courts, but the statute can be improved by incorporating elements that will make the statute a better tool for justice. It is evident from examining the procedural limitations of the statute and important case law that the securities fraud gap, terrorism financing, and difficulties for indirect victims are three critical subjects that need to be addressed by enhancing RICO. Flaws and shortcomings of the RICO statute have led to inconsistencies in court rulings. The expansive language of RICO can be limited to …

Two Comparative Perspectives On Copyright's Past And Future In The Digital Age, Timothy K. Armstrong

Faculty Articles and Other Publications

A review of two recent scholarly books on digital copyright law: The Copyright Wars: Three Centuries of Trans-Atlantic Battle by Peter Baldwin (Princeton, 2014), and Copyfight: The Global Politics of Digital Copyright Reform by Blayne Haggart (Univ. of Toronto, 2014). Both books are meticulously researched and carefully written, and each makes an excellent addition to the literature on copyright. Contrasting both titles in this joint review, however, helps to reveal a few respects in which each work is incomplete; indeed, at times each book reads as a critique of the other.

Baldwin's The Copyright Wars argues that modern debates over …

Making Private Copies In The Cloud: Yes, No, Maybe?, Lucie Guibault

Articles, Book Chapters, & Popular Press

Presentation at the Private Use in EU Copyright Law Seminar, Adam Mickiewicz University in Poznań, Poland.

Is Europe Falling Behind In Data Mining? Copyright's Impact On Data Mining In Academic Research, Christian Handke, Lucie Guibault, Joan-Josep Vallbé

Articles, Book Chapters, & Popular Press

This empirical paper discusses how copyright affects data mining (DM) by academic researchers. Based on bibliometric data, we show that where DM for academic research requires the express consent of rights holders: (1) DM makes up a significantly lower share of total research output; and (2) stronger rule-of-law is associated with less DM research. To our knowledge, this is the first time that an empirical study bears out a significant negative association between copyright protection and innovation.

Faustian Perspective On Digitization: Making A Deal With The Devil, Lucie Guibault

Articles, Book Chapters, & Popular Press

Digitization of library material, archives and museum collections, arts organizations repositories is progressing rapidly, and opens up new possibilities of accessing, using and re-using the knowledge embodied in cultural heritage. By giving new purpose and function to works, it enhances the value of the public domain and enriches the public sphere. However, digitization also creates the conditions for the rise of new proprietary entitlements over cultural objects. Such ‘informational monopolies’ are often justified as necessary to recoup the high costs of digitization, or as the basis to provide additional sources of income for the cultural institutions. At the same time, …

Book Review: "Die Gemeinfreiheit: Begriff, Funktion, Dogmatik (The Public Domain: Concept, Function, Dogmatics)" By Alexander Peukert, Marketa Trimble

Scholarly Works

The reviewer considers a recent book by Alexander Peukert, the professor of civil and commercial law who specializes in international intellectual property law at Goethe University in Frankfurt am Main, Germany. Peukert has devoted the book to defining the limits of the public domain – the realm of intellectual activity in which works are free for anyone to use because the works are not protected by intellectual property rights, are protected but the protection has expired, are subject to an exception to the rights under the law, or are unprotected because the owner of the rights chooses not to enforce …

Open Connectivity, Open Data: Two Dimensions Of The Freedom To Seek, Receive And Impart Information In The New Zealand Bill Of Rights, Jonathon Penney

Articles, Book Chapters, & Popular Press

Recently, ideas about "rights" to Internet access or connectivity have received growing recognition from governments, legal institutions, and other political actors in several countries, including New Zealand Despite this emerging political and legal recognition, there are few, if any, systematic studies exploring such ideas. This paper aims to change this. First, it offers a theoretical exploration of the idea of a "right" to Internet access, including the diferent versions of such rights talk. Secondly, it examines whether there is any legal basis for such rights claims in New Zealand and ultimately argues that section 14 of the New Zealand Bill …

Cross-Border Extended Collective Licensing: A Solution To Online Dissemination Of Europe’S Cultural Heritage, Johan Axhamn, Lucie Guibault

Articles, Book Chapters, & Popular Press

The ever increasing use of the Internet and of digitisation technologies have opened up new possibilities for distributing and accessing creative content online, including for cultural heritage institutions. However, the digitisation and dissemination of a substantial proportion of the collections held by European cultural institutions may be considerably hindered due to high transaction costs related to clearance of copyright and related rights. This holds equally true for the cultural institutions taking part in the Europeana project. This study examines whether the Nordic “extended collective licensing” (ECL) model could provide a viable solution to the problems of digitisation and dissemination of …

Intellectual Property, Copyright, And Piracy: A Cultural View, Steven W. Staninger

Copley Library: Faculty Scholarship

Religion plays a major role in determining culture, and has an important effect on how laws are both written and enforced. The concept of intellectual property varies in different cultural traditions, and the dominant religion of a culture plays a major role in the how copyright is viewed and if it is respected or enforced. This paper briefly evaluates the cultures of three major religious and intellectual traditions to determine what, if any, effect their beliefs and values have on the respect for and enforcement of laws defending intellectual property and copyright.

Harvesting Intellectual Property: Inspired Beginnings And 'Work-Makes-Work,' Two Stages In The Creative Processes Of Artists And Innovators, Jessica Silbey

Faculty Scholarship

This Article is part of a larger empirical study based on face-to-face interviews with artists, scientists, engineers, their lawyers, agents, and business partners. The book-length project involves the collecting and analysis of stories from artists, scientists, and engineers about how and why they create and innovate. It also collects stories from their employers, business partners, managers, and lawyers about their role in facilitating the process of creating and innovating. The book’s aim is to make sense of the intersection between intellectual property law and creative and innovative activity, specifically to discern how intellectual property intervenes in the careers of the …

The Recasting Of Copyright & Related Rights For The Knowledge Economy, P Bernt Hugenholtz, Mireille Van Eechoud, Stef J. Van Gompel, Natali Helberger, Lucie Guibault

Reports & Public Policy Documents

In the European Union, copyright law is increasingly a matter for the European legislator. Member states retain ever less competence to regulate intellectual property rights.

This study critically examines the 'acquis communautaire' in the field of copyright and related (neighbouring) rights, focusing on the seven copyright specific directives, from the 1991 Software directive to the 2001 Information Society Directive. It also deals with distinct issues that are on the agenda of the EU: After reviewing arguments for and against the extension of the term of protection of phonograms (sound recordings), the authors conclude there is no convincing case for extending …

Inducers And Authorisers: A Comparison Of The Us Supreme Court's Grokster Decision And The Australian Federal Court's Kazaa Ruling, Jane C. Ginsburg, Sam Ricketson

Faculty Scholarship

On June 27, 2005, the US Supreme Court announced its much-awaited decision in MGM Studios, Inc. v. Grokster Ltd. A few months after this, the Federal Court of Australia handed down its decision at first instance in relation to parallel litigation in that country concerning the KaZaa file sharing system. Both decisions repay careful consideration of the way in which the respective courts have addressed the relationship between the protection of authors' rights and the advent of new technologies, particularly in relation to peer-to-peer networks.

In the Grokster case, songwriters, record producers and motion picture producers alleged that two popular …

When Will We Have Cross-Border Licensing Of Copyright And Related Rights In Europe?, Lucie Guibault

Articles, Book Chapters, & Popular Press

In Europe, much has been written recently about the collective management of copyright and related rights. April 2004 saw the publication of the European Commission’s Communication to the Council and the European Parliament on the Management of Copyright and Related Rights in the Internal Market. This communication confirms the Commission’s intention to adopt, in the not too distant future, a directive on the governance of the societies for collective management of copyright and related rights (collecting societies) in Europe. In addition to describing the current situation in the area of collective management of copyright and related rights in the European …

Fair Use And The Digital Distribution Of Music - Recording Industry Association Of America V. Napster, Inc. (A Comparative Analysis Of A Restraint On Copyright In The United States Of America And Trinidad And Tobago), Michelle Lisa Alexander

LLM Theses and Essays

The purpose of this thesis is to undertake a critical analysis of the Napster judgment and its treatment of the doctrine of fair use, to determine whether the doctrine can retain its integrity in the internet age. It is proposed that as technology advances, U.S. policymakers are moving away from the constitutional objectives of U.S. copyright law and are equating copyright interests with property rights, to the detriment of noncommercial users of copyrighted works. Further, it is suggested that the decision in the Napster litigation is important for the evolving landscape of U.S. copyright law, as it signals the difficulty …