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Full-Text Articles in Law
Living Heritage, Stolen Meaning: Protecting Intangible Native American Cultural Resources Through The Right Of Publicity, 20 Uic Rev. Intell. Prop. L. 31 (2020), Shannon Price
UIC Review of Intellectual Property Law
No abstract provided.
The Global Protection Of Traditional Knowledge: Searching For The Minimum Consensus, 17 J. Marshall Rev. Intell. Prop. L. 42 (2017), Aman Gebru
UIC Review of Intellectual Property Law
The protection of traditional knowledge (TK) – the know-how, skills, innovations and practices of indigenous peoples and local communities has been a subject of heated debate in many international forums. TK has proved to be useful as an input in modern industries. For instance, pharmaceutical companies have used medicinal TK to develop drugs more quickly. Despite its value, TK faces an alarming rate of loss and there are many initiatives that attempt to preserve it for posterity. However, almost every major issue on TK protection is contentious, including whether international TK protection is necessary or if domestic legislation alone would …
Traditional Knowledge Digital Library: "A Silver Bullet" In The War Against Biopiracy?, 17 J. Marshall Rev. Intell. Prop. L. 214 (2017), Seemantani Sharma
Traditional Knowledge Digital Library: "A Silver Bullet" In The War Against Biopiracy?, 17 J. Marshall Rev. Intell. Prop. L. 214 (2017), Seemantani Sharma
UIC Review of Intellectual Property Law
India has long been a victim of the emotionally expulsive wrong of biopiracy at the behest of Western corporations. Traditional Knowledge Digital Library (TKDL), a digital repository of traditional medicinal knowledge was a reaction to this act of “unjust enrichment”. While there is ample scholarly discourse on the biopiracy of Indian traditional knowledge (TK), there is scant literature critically evaluating TKDL as a tool for the protection of TK. This paper attempts to highlight some of the defects and inadequacies pervading TKDL, which inhibits its characterisation as a “silver bullet” in the war against biopiracy. Though laudatory, TKDL with its …
The Destruction Of Cultural Heritage: A Crime Against Property Or A Crime Against People?, 15 J. Marshall Rev. Intell. Prop. L. 336 (2016), Patty Gerstenblith
The Destruction Of Cultural Heritage: A Crime Against Property Or A Crime Against People?, 15 J. Marshall Rev. Intell. Prop. L. 336 (2016), Patty Gerstenblith
UIC Review of Intellectual Property Law
The destruction of cultural heritage has played a prominent role in the ongoing conflicts in Syria and Iraq and in the recent conflict in Mali. This destruction has displayed the failure of international law to effectively deter these actions. This article reviews existing international law in light of this destruction and the challenges posed by the issues of non-international armed conflict, non-state actors and the military necessity exception. By examining recent developments in applicable international law, the article proposes that customary international law has evolved to interpret existing legal instruments and doctrines concerning cultural heritage in light of the principles …
Beyond The Destruction Of Syria: Considering A Future In Syria And The Protection Of The Right To Culture, 15 J. Marshall Rev. Intell. Prop. L. 522 (2016), Sarah Dávila-Ruhaak
Beyond The Destruction Of Syria: Considering A Future In Syria And The Protection Of The Right To Culture, 15 J. Marshall Rev. Intell. Prop. L. 522 (2016), Sarah Dávila-Ruhaak
UIC Review of Intellectual Property Law
Although the right to culture has been widely recognized under international human rights, its reach and practical application has been limited in cultural preservation efforts. Individuals and communities that attempt to be part of the decision-making process in preservation efforts often face barriers to access in that process. The need to re-conceptualize the right to culture is vital for its protection and preservation. This article proposes that the right to self-determination must be utilized as a core fundamental principle that enables a disenfranchised individual or community to have ownership in preservation efforts and decide how to shape their identity. It …
From Tragedy To Triumph In The Pursuit Of Looted Art: Altmann, Benningson, Portrait Of Wally, Von Saher And Their Progeny, 15 J. Marshall Rev. Intell. Prop. L. 394 (2016), Donald Burris
UIC Review of Intellectual Property Law
This article is a broad and approachable overview of American law regarding the potential repatriation of Nazi-looted art—an area which the author and his now-retired partner, Randy Schoenberg, helped develop from the ground up starting with the development of the Altmann case, decided by the U.S. Supreme Court in 2004, and continuing on through a number of fascinating looted-art cases of a more recent vintage. Parts of the article read as much like a detective story as a summary of cases and Mr. Burris has been kind enough to share both his approach to these cases and his prognosis for …
Cultural Plunder And Restitution And Human Identity, 15 J. Marshall Rev. Intell. Prop. L. 460 (2016), Ori Soltes
Cultural Plunder And Restitution And Human Identity, 15 J. Marshall Rev. Intell. Prop. L. 460 (2016), Ori Soltes
UIC Review of Intellectual Property Law
No abstract provided.
Where Are We And Where Are We Going: Legal Developments In Cultural Property And Nazi Art Looting, 15 J. Marshall Rev. Intell. Prop. L. 435 (2016), Thomas Kline
UIC Review of Intellectual Property Law
No abstract provided.
Illusory Borders: The Myth Of The Modern Nation-State And Its Impact On The Repatriation Of Cultural Artifacts, 15 J. Marshall Rev. Intell. Prop. L. 486 (2016), Lubna El-Gendi
UIC Review of Intellectual Property Law
While the current world order of independent nation-states may seem like a natural state that has existed for centuries, in reality, it is a relatively new development that was forged after the demise of imperial rule. Yet, the nation-state is the foundational entity of our current international political and legal framework. International treaties and relations are structured around the nation-state, which is recognized as the core entity in which rights are vested and on which obligations are imposed. This prioritization of the nation-state leads to issues when we consider the repatriation of cultural heritage, particularly in light of the history …
Cultural Heritage & New Media: A Future For The Past, 15 J. Marshall Rev. Intell. Prop. L. 604 (2016), Ann Marie Sullivan
Cultural Heritage & New Media: A Future For The Past, 15 J. Marshall Rev. Intell. Prop. L. 604 (2016), Ann Marie Sullivan
UIC Review of Intellectual Property Law
The application of new media to cultural heritage is consistent with the policy objectives that the copyright law of the United States stands to promote. However, the practical application of the law currently hinders these objectives, often stifling the creation and dissemination of new media works of cultural heritage. In this context, copyright law presents a problem and not a solution, a barrier and not a protection, dissuasion of creation and not encouragement and incentive. Defining the legal scope and reach of digital property and new media within the realm of art and cultural heritage law is critical for the …
Nagpra And Its Limitations: Repatriation Of Indigenous Cultural Heritage, 15 J. Marshall Rev. Intell. Prop. L. 472 (2016), Kevin Ray
UIC Review of Intellectual Property Law
The historical conditions under which indigenous (and specifically Native American) cultural heritage objects have been collected present tremendous difficulties, since collecting efforts were frequently influenced, or even directed, by racist or colonialist ideologies. Recent decades have seen efforts to redress past wrongs, as well as to correct misunderstandings and misrepresentations. The restitution and repatriation processes of the Native American Graves Protection and Repatriation Act of 1990, enacted as human rights legislation, provide powerful, but imperfect tools for the protection of Native American cultural heritage. The challenges are both domestic and international. Recent French auction sales of Hopi, Zuni, and Navajo …
Amber Tears And Copyright Fears: The Inadequate Protection Of Cultural Heritage In The United States, 15 J. Marshall Rev. Intell. Prop. L. 543 (2016), Ingrida Latoza
UIC Review of Intellectual Property Law
The United States is comprised of many different cultural communities, each rich with expressions of language and custom. Cultural diversity promotes respect among individuals and harmonizes differences between communities—nationally and globally. Through the preservation of cultural heritage, diversity is maintained. Since World War II, with the exile of many from Lithuania, members of the Lithuanian-American community have strived to maintain the cultural heritage of their beloved homeland. After several decades, a Lithuanian-American cultural identity has developed, creating unique and individual traditions, adding to the cultural heritage of the United States as a whole. Most of the international community has adopted …
Music As Cultural Heritage: Analysis Of The Means Of Preventing The Exploitation Of Intangible Cultural Heritage, 14 J. Marshall Rev. Intell. Prop. L. 228 (2015), Ronald Inawat
UIC Review of Intellectual Property Law
What started out as a law school requirement quickly snowballed into an analysis of the relationship between intellectual property and cultural heritage. I am a music guy at heart, having played piano since I was five years old, having composed one song (after multiple tries), and now working directly with musicians and artists. So when I began researching a topic for an article that would connect the dots between the cultural heritage and its respective music, I could only come across legal doctrine and articles that focused heavily on tangible art and artifacts. So what happened to the music? After …
Protecting Traditional Knowledge In International Intellectual Property Law: Imperatives For Protection And Choice Of Modalities, 14 J. Marshall Rev. Intell. Prop. L. 25 (2014), Tesh Dagne
UIC Review of Intellectual Property Law
The need for protecting traditional knowledge (TK) has been acknowledged in discussion and negotiations under the umbrella of a number of inter-governmental organizations that deal with biodiversity, the environment, indigenous peoples’ rights, human rights, food and agriculture, among others. It has, however, proved difficult to arrive at a consensus on the proper modality that can serve the needs and desires of Indigenous and Local Communities (ILCs) in their economic and cultural participation. The article examines the imperatives for the protection of TK and explores the modalities of TK protection at the international level for regulating the control of, access to …
I Like Cabernet And Merlot But I'M Not Drinking Bordeaux: Certified Confusion, 13 J. Marshall Rev. Intell. Prop. L. 203 (2013), Angela Huisingh
I Like Cabernet And Merlot But I'M Not Drinking Bordeaux: Certified Confusion, 13 J. Marshall Rev. Intell. Prop. L. 203 (2013), Angela Huisingh
UIC Review of Intellectual Property Law
A trademark’s purpose is to help consumers identify a service or product’s source. To this end, trademark owners may prevent others from using their marks on similar goods. But to ensure that a few savvy businesspersons do not monopolize certain terms, the Lanham Act carves out specific exceptions to trademark protection. Some of these exceptions include indications of geographic origin, such as Bordeaux and Napa Valley. Wine, however, has long been identified primarily by the geographic region in which its grapes grow. To ameliorate this fundamental divide, and to preserve the integrity of their Geographical Indications in the eyes of …
Patchwork Protection: Copyright Law And Quilted Art, 9 J. Marshall Rev. Intell. Prop. L. 855 (2010), Maureen Collins
Patchwork Protection: Copyright Law And Quilted Art, 9 J. Marshall Rev. Intell. Prop. L. 855 (2010), Maureen Collins
UIC Review of Intellectual Property Law
Historically, quilts have been denied the same copyright protection available to any other expression in a fixed medium. When quilts have been considered protectable, the protectable elements in a pattern have been limited, or the application of the substantial similarity test has varied widely. One possible explanation for this unequal treatment is that quilting is viewed as ‘women’s work.’ Another is that quilts are primarily functional. However, quilts have evolved over time and may now be expensive collectible pieces of art; art that deserves copyright protection. This article traces the history of quilt making, addresses the varying standards of protection …
Intellectual Property Enforcement: A Reality Gap (Insufficient Assistance, Ineffective Implementation)?, 8 J. Marshall Rev. Intell. Prop. L. 47 (2008), Timothy P. Trainer
Intellectual Property Enforcement: A Reality Gap (Insufficient Assistance, Ineffective Implementation)?, 8 J. Marshall Rev. Intell. Prop. L. 47 (2008), Timothy P. Trainer
UIC Review of Intellectual Property Law
The World Trade Organization’s (“WTO”) Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) promised to standardize world-wide intellectual property rights (“IPR”) enforcement procedures, and thus, facilitate trade and commerce between member nations. However, the TRIPS implementation transition of many less developed and developing nations has resulted in a much lower IPR enforcement standard than the drafters of TRIPS envisioned. This, coupled with increased world-wide trade in counterfeit goods, has created friction between the developing nations with lower IPR enforcement and the developed nations with higher IPR enforcement. Consequently, many nations, including the United States, have entered into Free Trade …
Can Copyright Lend Its Cinderellaic Magic To Chinese Folklore?, 5 J. Marshall Rev. Intell. Prop. L. 203 (2006), Deming Liu
UIC Review of Intellectual Property Law
Folklore in China is disappearing and facing challenges for its very survival. To salvage folklore in China, some have called for immediate legislative action and proposed the law of copyright or sui generis protection as some potential solutions. However, copyright is traditionally concerned with the creations of individuals rather than the cumulative creations of an ethnic group or region. Furthermore, even sui generis protection, which is better adapted to folklore in theory, could be susceptible in practice to the abuses of private monopolies or state tyranny. Overall, the protection of folklore depends more on a consistent governmental policy of open-mindedness …
Some Remarks On The Limits Of Harmonization, 5 J. Marshall Rev. Intell. Prop. L. 596 (2006), Graeme B. Dinwoodie
Some Remarks On The Limits Of Harmonization, 5 J. Marshall Rev. Intell. Prop. L. 596 (2006), Graeme B. Dinwoodie
UIC Review of Intellectual Property Law
Some Remarks on the Limits of Harmonization
Traditional Knowledge And The Fight For The Public Domain, 5 J. Marshall Rev. Intell. Prop. L. 317 (2006), Doris E. Long
Traditional Knowledge And The Fight For The Public Domain, 5 J. Marshall Rev. Intell. Prop. L. 317 (2006), Doris E. Long
UIC Review of Intellectual Property Law
What are the challenges facing the protection of traditional knowledge internationally? Can the protection of such rights, which have traditionally existed outside the boundaries of intellectual property, be achieved in the face of current challenges to protections epitomized by such emerging international movements as enhanced access to information and culture as a human right? This article examines some of the emerging issues in this hotly contested area and suggests that such movements, which are not adverse to intellectual property and traditional knowledge rights, should be used to craft a new method for addressing the issue of traditional knowledge protection internationally.
How We Lost Our Moral Rights And The Door Closed On Non-Economic Values In Copyright, 5 J. Marshall Rev. Intell. Prop. L. 1 (2005), Susan P. Liemer
How We Lost Our Moral Rights And The Door Closed On Non-Economic Values In Copyright, 5 J. Marshall Rev. Intell. Prop. L. 1 (2005), Susan P. Liemer
UIC Review of Intellectual Property Law
The Visual Artists Rights Act (“VARA”) is a piece of modern legislation preceded by a rich history, with a significant gap. As early as the 1400’s, patents were offered as economic incentive to develop new processes in the trades and applied arts. By the 1700’s, the Statute of Anne became the first statute to protect the literary work of individual creators. The Engravers’ Act of 1735 soon followed, expanding this protection to include the first works of visual art and providing the precursor to the modern right of integrity. Millar v. Taylor was the landmark case that alluded to moral …
Protecting The Rights Of Indigenous Cultures Under The Current Intellectual Property System: Is It A Good Idea?, 3 J. Marshall Rev. Intell. Prop. L. 88 (2003), Juan Andrés Fuentes
Protecting The Rights Of Indigenous Cultures Under The Current Intellectual Property System: Is It A Good Idea?, 3 J. Marshall Rev. Intell. Prop. L. 88 (2003), Juan Andrés Fuentes
UIC Review of Intellectual Property Law
Globalization and digital communication trends have provided new avenues and incentives for the commercial use of the folkloric artwork of indigenous peoples. Such commercial uses, however, have occurred largely without any creative control or financial benefit inuring to the original creators, people, or tribe of whom the artistic works form an integral part of their culture. Since much of the works are owned by a community as a whole, as opposed to being owned by individuals, it is difficult to fit such works into an intellectual property regime that is based on laws formed around Western notions of art and …