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Articles 1 - 30 of 50
Full-Text Articles in Law
Death Of Copyright, Paul Gugliuzza
Death Of Copyright, Paul Gugliuzza
Faculty Scholarship
The four primary bodies of intellectual property law—patent law, copyright law, trademark law, and the law of trade secrets—address the question of duration in different ways. Trade secrets have no fixed duration; the law protects against misappropriation as long as the relevant information remains secret. Trademark protection lasts as long as the mark retains its capacity to distinguish the goods or services it is attached to. In patent law—my primary area of scholarship—duration is fixed, finite, and generally straightforward to determine: you get twenty years from the date you file your patent application. Copyright duration, by contrast, varies depending on …
A Natural Right To Copy, Glynn Lunney
A Natural Right To Copy, Glynn Lunney
Faculty Scholarship
In this symposium, we gather to celebrate the work of Wendy Gordon. In this essay, I revisit her article, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property. In the article, Professor Gordon first used the "no-harm" principle of John Locke to justify copyright as natural right and then used his “enough-and-as-good” proviso to limit that right. Her second step turned natural rights approaches to copyright on its head. Through it, she showed that even if we accept copyright as natural right, that acceptance does not necessarily lead to a copyright of undue breadth …
The Uncopyrightability Of Edicts Of Government, Shyamkrishna Balganesh, Peter S. Menell
The Uncopyrightability Of Edicts Of Government, Shyamkrishna Balganesh, Peter S. Menell
All Faculty Scholarship
This amicus brief filed in the Supreme Court appeal of Georgia, et al., v. Public.Resource.Org.,explores the interplay of copyright law and the edicts of government doctrine. The “edicts of government” doctrine was first validated by the U.S. Supreme Court in a series of nineteenth century cases. Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834); Banks v. Manchester, 128 U.S. 244 (1888); Callaghan v. Meyers, 128 U.S. 617 (1888). While the doctrine has never been directly recognized in the express wording of the copyright statute, it is nevertheless firmly rooted in foundational copyright principles that are …
Mashups And Fair Use: The Bold Misadventures Of The Seussian Starship Enterprise, Peter Menell, Shyamkrishna Balganesh, David Nimmer
Mashups And Fair Use: The Bold Misadventures Of The Seussian Starship Enterprise, Peter Menell, Shyamkrishna Balganesh, David Nimmer
All Faculty Scholarship
This amicus brief filed in the Ninth Circuit appeal of Dr. Seuss Enterprises v. ComicMix seeks to rectify and restore the balances underlying the Copyright Act of 1976 — particularly the interplay of the Section 106(2) right to prepare derivative works and the fair use doctrine. The District Court granted the defendants’ motion for summary judgment on the ground that OH THE PLACES YOU’LL BOLDLY GO! — the defendants’ illustrated book combining Dr. Seuss’s OH THE PLACES YOU’LL GO! and other Dr. Seuss books with Star Trek characters and themes — made fair use of the Dr. Seuss works.
Based …
Dancing On The Grave Of Copyright?, Anupam Chander, Madhavi Sunder
Dancing On The Grave Of Copyright?, Anupam Chander, Madhavi Sunder
Georgetown Law Faculty Publications and Other Works
The quarter century since Barlow’s writing allows us to assess his prophecy. The economy moved in the very direction that Barlow anticipated—from an economy focused on the ownership of things to an economy based on services and experiences. In high-income countries, services now account for three-quarters of the gross domestic product.
But intellectual property proved more resilient and adaptable than Barlow predicted. Intellectual property law both offered exceptions where necessary, while simultaneously expanding to cover new forms of creativity and activities. In this short essay, we argue that, for good or ill, intellectual property has reconfigured itself for an economy …
A Tale Of Two Copyrights, Glynn Lunney
A Tale Of Two Copyrights, Glynn Lunney
Faculty Scholarship
This essay explores two possible copyright regimes. The first uses costless and perfect price discrimination to enable copyright owners to capture the full market or exchange value of their work. The second also uses costless and perfect price discrimination, but allows copyright owners to capture only the persuasion cost for authoring and distributing a work. We can call the first regime, costless copyright maximalism, and the second, costless copyright minimalism. The choice between these two regimes is primarily distributional: Should we design copyright to allocate the surplus associated with copyrighted works to copyright owners or to copyright consumers? This essay …
Review Of "Rights And Reproductions: The Handbook For Cultural Institutions" (2nd Ed.), Georgia Westbrook
Review Of "Rights And Reproductions: The Handbook For Cultural Institutions" (2nd Ed.), Georgia Westbrook
School of Information Studies - Post-doc and Student Scholarship
The second edition of Rights and Reproductions: The Handbook for Cultural Institutions provides an updated look at intellectual property, related laws, and appropriate use for cultural institutions. The authors provide a robust and clear explanation of relevant issues and serves a wide range of users employing the text as a reference work.
Reuse, Remix, And Create With Creative Commons Licenses, Andrée Rathemacher
Reuse, Remix, And Create With Creative Commons Licenses, Andrée Rathemacher
Technical Services Faculty Presentations
Slides from a presentation, "Reuse, Remix, and Create with Creative Commons Licenses," presented at the Rhode Island Library Association Annual Conference 2019, Get Informed!, on May 23, 2019 in North Smithfield, Rhode Island.
An openly-shared Google Slides version of this presentation is also available at https://bit.ly/2w6maqH.
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REUSE, REMIX, AND CREATE WITH CREATIVE COMMONS LICENSES | ROOM 2A
What are Creative Commons (CC) licenses and how do they work? What is the difference between something that is free online and something that is truly “open”? Did you know that it is often a Creative Commons license that puts …
Copyright: Preserve, Protect, And Promote Your Research, Supplemental Resources, Sue Ann Gardner, Paul Royster
Copyright: Preserve, Protect, And Promote Your Research, Supplemental Resources, Sue Ann Gardner, Paul Royster
Copyright, Fair Use, Scholarly Communication, etc.
Supplemental sources handed out during a presentation given on April 9, 2019 in the Cottonwood Room, East Union, University of Nebraska-Lincoln.
Topics: Copyright, Fair Use, Educational use, UNL Digital Commons.
Copyright: A Powerful Tool To Protect, Preserve, And Promote Your Research, Paul Royster, Sue A. Gardner
Copyright: A Powerful Tool To Protect, Preserve, And Promote Your Research, Paul Royster, Sue A. Gardner
University of Nebraska-Lincoln Libraries: Conference Presentations and Speeches
Copyright begins at “birth”
You can also register.
The holder of copyright controls the ability of others to distribute: reproductions, derivatives, translations, performance
Length of term = until you die + 70 years
Licensing and contracts
Permissions
Publisher contracts
Creative Commons licenses
Gold Open Access/APCs
Predatory journals
"Can I use this {image / quote / video clip / ...} in my {lecture / course materials / dissertation / ...}” ?
Public domain (= no copyright)
Educational use = Not Infringement
Plagiarism vs. infringement
Fair Use (1): Re-using copyrighted materials in your own work--legally
Fair use (2): The 4 Factors
Who …
Copyright: Preserve, Protect, And Promote Your Research: Quiz (Key), Sue Ann Gardner
Copyright: Preserve, Protect, And Promote Your Research: Quiz (Key), Sue Ann Gardner
Copyright, Fair Use, Scholarly Communication, etc.
Answers to a quiz given during a presentation held on April 9, 2019 in the Cottonwood Room, East Union, University of Nebraska-Lincoln. Topic: Copyright for academic authors.
Copyright: A Powerful Tool To Protect, Preserve, And Promote Your Research [Lunch And Learn Outline], Paul Royster, Sue Ann Gardner
Copyright: A Powerful Tool To Protect, Preserve, And Promote Your Research [Lunch And Learn Outline], Paul Royster, Sue Ann Gardner
Copyright, Fair Use, Scholarly Communication, etc.
Basic copyright: Know your rights; Copyright registration; Rights conferred; Length of term; Infringement
Licensing and contracts: Addenda to copyright that limit or extend your work; Permissions; Evaluating predatory journals; Creative Commons licenses; Gold Open Access/APCs
Fair use: How to fairly and legally use copyrighted materials in your own work; Plagiarism vs. copyright
Educational use: "Can I use this {image, quote, video clip, ...} in my {lecture, course materials, dissertation, ...}"
Copyright considerations, UNL Digital Commons: Publishing: books, journals; Green Open Access
Copyright: Preserve, Protect, And Promote Your Research: Quiz, Sue Ann Gardner
Copyright: Preserve, Protect, And Promote Your Research: Quiz, Sue Ann Gardner
Copyright, Fair Use, Scholarly Communication, etc.
Quiz given during a presentation held on April 9, 2019 in the Cottonwood Room, East Union, University of Nebraska-Lincoln. Topic: Copyright for academic authors.
Tried And True: Fair Use Tales For The Telling, Sarah E. Mccleskey, Courtney Selby
Tried And True: Fair Use Tales For The Telling, Sarah E. Mccleskey, Courtney Selby
Faculty Publications
On Thursday, March 1, 2018, the Harvard Library Office for Scholarly Communication hosted “Tried and True: Fair Use Tales for the Telling,” a one-day program celebrating Harvard’s Fifth Anniversary of Fair Use Week. Leading fair use scholars and practitioners shared their stories and engaged in lively discussion about the powerful and flexible fair use provision of the Copyright Act and its applications. Topics included treatment of the fair use doctrine in recent jurisprudence, conflicts over the use of visual works in remixes and mash-ups, academic work and social commentary, filmmaking, controlled digital lending practices in libraries, software preservation, and more. …
Tried And True: Fair Use Tales For The Telling, Sarah E. Mccleskey, Courtney L. Selby
Tried And True: Fair Use Tales For The Telling, Sarah E. Mccleskey, Courtney L. Selby
Hofstra Law Faculty Scholarship
On Thursday, March 1, 2018, the Harvard Library Office for Scholarly Communication hosted “Tried and True: Fair Use Tales for the Telling,” a one-day program celebrating Harvard’s Fifth Anniversary of Fair Use Week. Leading fair use scholars and practitioners shared their stories and engaged in lively discussion about the powerful and flexible fair use provision of the Copyright Act and its applications. Topics included treatment of the fair use doctrine in recent jurisprudence, conflicts over the use of visual works in remixes and mash-ups, academic work and social commentary, filmmaking, controlled digital lending practices in libraries, software preservation, and more. …
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
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 …
The New Legal Landscape For Text Mining And Machine Learning, Matthew Sag
The New Legal Landscape For Text Mining And Machine Learning, Matthew Sag
Faculty Articles
Now that the dust has settled on the Authors Guild cases, this Article takes stock of the legal context for TDM research in the United States. This reappraisal begins in Part I with an assessment of exactly what the Authors Guild cases did and did not establish with respect to the fair use status of text mining. Those cases held unambiguously that reproducing copyrighted works as one step in the process of knowledge discovery through text data mining was transformative, and thus ultimately a fair use of those works. Part I explains why those rulings followed inexorably from copyright's most …
Intellectual Property Harms: A Paradigm For The Twenty-First Century, Jessica Silbey
Intellectual Property Harms: A Paradigm For The Twenty-First Century, Jessica Silbey
Faculty Scholarship
This short essay is part of a larger book project that investigates how contemporary intellectual property debates, especially in the digital age, are taking place over less familiar terrain: fundamental rights and values. Its argument draws from the diverse, personal accounts of interviews from everyday creators and innovators and focuses on descriptions of harms and, as some say “abuses,” they suffer within their practicing communities. The harms are not described are the usual harms that intellectual property law is understood to prevent. Typically, intellectual property injuries are conceived in individual terms and as economic injuries. An infringer is a thief. …
Clown Eggs, David Fagundes, Aaron K. Perzanowski
Clown Eggs, David Fagundes, Aaron K. Perzanowski
Faculty Publications
Since 1946, many clowns have recorded their makeup by having it painted on eggs that are kept in a central registry in Wookey Hole, England. This tradition, which continues today, has been referred to alternately as a form of informal copyright registration and a means of protecting clowns’ property in their personae. This Article explores the Clown Egg Register and its sur- rounding practices from the perspective of law and social norms. In so doing, it makes several contributions. First, it contributes another chapter to the growing literature on the norms-based governance of intellectual property, showing how clowns—like comedians, roller …
Exploring The Interfaces Between Big Data And Intellectual Property Law, Daniel J. Gervais
Exploring The Interfaces Between Big Data And Intellectual Property Law, Daniel J. Gervais
Vanderbilt Law School Faculty Publications
This article reviews the application of several IP rights (copyright, patent, sui generis database right, data exclusivity and trade secret) to Big Data. Beyond the protection of software used to collect and process Big Data corpora, copyright’s traditional role is challenged by the relatively unstructured nature of the non-relational (noSQL) databases typical of Big Data corpora. This also impacts the application of the EU sui generis right in databases. Misappropriation (tort-based) or anti-parasitic behaviour protection might apply, where available, to data generated by AI systems that has high but short-lived value. Copyright in material contained in Big Data corpora must …
Toward The Personalization Of Copyright Law, Adi Libson, Gideon Parchomovsky
Toward The Personalization Of Copyright Law, Adi Libson, Gideon Parchomovsky
All Faculty Scholarship
In this Article, we provide a blueprint for personalizing copyright law in order to reduce the deadweight loss that stems from its universal application to all users, including those who would not have paid for it. We demonstrate how big data can help identify inframarginal users, who would not pay for copyrighted content, and we explain how copyright liability and remedies should be modified in such cases.
3d Printing And U.S. Copyright Law, Ryan G. Vacca, Peter S. Menell
3d Printing And U.S. Copyright Law, Ryan G. Vacca, Peter S. Menell
Law Faculty Scholarship
This article explores how 3D printing fits within US copyright law. US copyright law provides a well-developed general framework for the protection of creative designs, whether fixed in CAD files or 3D objects. Enforcement of copyright protection in this industry faces some of the same challenges encountered by other content industries whose works were disrupted by the digital revolution. Nonetheless, 3D printing brings distinctive issues. Although grounded in statute, US copyright law has a rich common law tradition that affords courts significant leeway in adapting doctrines to new and unforeseen technological developments. This capacity is reinforced by the range of …
Code Revision Commission V. Public.Resource.Org And The Fight Over Copyright Protection For Annotations And Commentary, David E. Shipley
Code Revision Commission V. Public.Resource.Org And The Fight Over Copyright Protection For Annotations And Commentary, David E. Shipley
Scholarly Works
This article is about the Eleventh Circuit’s 2018 decision in Code Revision Commission v. Public.Resource.Org concerning the public edicts doctrine and holding that the State of Georgia’s copyright on the annotations, commentary and analyses in the Official Code of Georgia Annotated is invalid. About a third of the States claim copyright in the annotations to their codes so the potential impact of this decision is substantial. The U.S. Supreme Court granted Georgia’s petition for a writ of certiorari on Monday, June 24.
The article’s thesis is that the Eleventh Circuit was wrong and should be reversed. It first discusses the …
Existential Copyright And Professional Photography, Jessica Silbey, Eva E. Subotnik, Peter Dicola
Existential Copyright And Professional Photography, Jessica Silbey, Eva E. Subotnik, Peter Dicola
Faculty Publications
Intellectual property law has intended benefits, but it also carries certain costs—deliberately so. Skeptics have asked: Why should intellectual property law exist at all? To get traction on that overly broad but still important inquiry, we decided to ask a new, preliminary question: What do creators in a particular industry actually use intellectual property for? In this first-of-its-kind study, we conducted thirty-two in-depth qualitative interviews of photographers about how copyright law functions within their creative and business practices. By learning the actual functions of copyright law on the ground, we can evaluate and contextualize existing theories of intellectual property. More …
Who Owns (What We Characterize As) The News?, Laura A. Heymann
Who Owns (What We Characterize As) The News?, Laura A. Heymann
Faculty Publications
Will Slauter’s Who Owns the News? (2019) is subtitled A History of Copyright, but it could just as easily have been subtitled A History of Journalism. Slauter’s thoughtful and detailed story of the battle among newspaper publishers to secure legal and other protection for their work product is inseparable from questions about what it means for something to be “news” in the first place—and, indeed, whether “journalism” is something different from “news.” Developments subsequent to Slauter’s history—the emergence of the journalist as a literary figure, the heightened need to see news publishing as an economic (and profitable) enterprise, and the …
“Temporary” Conceptual Art: Property And Copyright, Hopes And Prayers, Richard H. Chused
“Temporary” Conceptual Art: Property And Copyright, Hopes And Prayers, Richard H. Chused
Articles & Chapters
No abstract provided.
A Reconsideration Of Copyright's Term, Kristelia A. García, Justin Mccrary
A Reconsideration Of Copyright's Term, Kristelia A. García, Justin Mccrary
Publications
For well over a century, legislators, courts, lawyers, and scholars have spent significant time and energy debating the optimal duration of copyright protection. While there is general consensus that copyright’s term is of legal and economic significance, arguments both for and against a lengthy term are often impressionistic. Utilizing music industry sales data not previously available for academic analysis, this Article fills an important evidentiary gap in the literature. Using recorded music as a case study, we determine that most copyrighted music earns the majority of its lifetime revenue in the first five to ten years following its initial release …
Convergence And Conflation In Online Copyright, Christopher A. Cotropia, James Gibson
Convergence And Conflation In Online Copyright, Christopher A. Cotropia, James Gibson
Law Faculty Publications
The Digital Millennium Copyright Act is showing its age. Enacted in 1998, the DMCA succeeded in its initial goal of bringing clarity to wildly inconsistent judicial standards for online copyright infringement. But as time has passed, the Act has been overtaken—not by developments in technology, but by developments in copyright’s case law. Those cases are no longer as divergent as they were in the last millennium. Instead, over time the judicial standards and the statutory standards have converged, to the point where the differences between them are few.
At first glance, this convergence seems unproblematic. After all, uniformity was the …
Contracts Mattered As Much As Copyrights, Robert W. Gomulkiewicz
Contracts Mattered As Much As Copyrights, Robert W. Gomulkiewicz
Articles
Scholars have begun to appreciate the fundamental role that contracts played in the development of copyrights. Contracts gave copyrights vitalilty. This article explores the network of book publishing contracts that formed the legal infrastructure for a pre-modern “internet” at the dawn of copyright law in Great Britain in the eighteenth century. Drawing on insights from archival research, the article shows how this network of copyright contracts advanced an important goal of copyright: the spread of ideas and information throughout all parts of society. Appreciating the historical significance of copyright contracts provides valuable context for modern debates about copyright policy. Indeed, …
Price Discrimination & Intellectual Property, Michael J. Meurer, Ben Depoorter
Price Discrimination & Intellectual Property, Michael J. Meurer, Ben Depoorter
Faculty Scholarship
This chapter reviews the law and economics literature on intellectual property law and price discrimination. We introduce legal scholars to the wide range of techniques used by intellectual property owners to practice price discrimination; in many cases the link between commercial practice and price discrimination may not be apparent to non-economists. We introduce economists to the many facets of intellectual property law that influence the profitability and practice of price discrimination. The law in this area has complex effects on customer sorting and arbitrage. Intellectual property law offers fertile ground for analysis of policies that facilitate or discourage price discrimination. …