Law Commons^™

Government Responses To Disinformation On Social Media Platforms: Argentina, Australia, Canada, China, Denmark, Egypt, European Union, France, Germany, India, Israel, Mexico, Russian Federation, Sweden, United Arab Emirates, United Kingdom, Ruth Levush

Copyright, Fair Use, Scholarly Communication, etc.

Comparative Summary by Ruth Levush, Senior Foreign Law Specialist, Law Library of Congress, Global Legal Research Directorate

Concerns regarding the impact of viral dissemination of disinformation on democratic systems of government, on political discourse, on public trust in state institutions, and on social harmony have been expressed by many around the world. These concerns are shared by countries with advanced economies as well as those with emerging and developing economies.

The term “disinformation” as used in this report refers to “false information deliberately and often covertly spread . . . in order to influence public opinion or obscure the truth.” …

Operationalizing The Big Collective Collection: A Case Study Of Consolidation Vs Autonomy, Lorcan Dempsey, Constance Malpas, Mark Sandler

Copyright, Fair Use, Scholarly Communication, etc.

This is a discussion paper prepared in collaboration with the Big Ten Academic Alliance (BTAA) Library Initiatives. It presents a framework for operationalizing the BTAA collective collection. A collective collection is a collection managed collaboratively across a network of libraries. We have a very specific focus in this paper on the ”purchased” or print collection, acknowledging that other areas of library collections are sometimes managed collectively, digitized collections for example. The BTAA justifiably claims to be the premier academic collaboration in the US. Once described as “the world's greatest common market in education3,” it leverages the combined research and teaching …

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 …

Imaginary Bottles, Jessica Litman

Articles

This essay, written for a symposium commemorating John Perry Barlow, who died on February 7, 2018, revisits Barlow's 1994 essay for WIRED magazine, "The Economy of Ideas: A Framework for patents and copyrights in the Digital Age (everything you know about intellectual property is wrong)." Barlow observed that networked digital technology posed massive and fundamental challenges for the markets for what Barlow termed “the work we do with our minds” and for the intellectual property laws designed to shape those markets. He predicted that those challenges would melt extant intellectual property systems into a smoking heap within a decade, and …

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 Functional Approach To Judicial Review Of Ptab Rulings On Mixed Questions Of Law And Fact, Rebecca S. Eisenberg

Articles

The Court of Appeals for the Federal Circuit (“Federal Circuit”) has long relied on active appellate review to bring uniformity and clarity to patent law. It initially treated the PTO the same as the federal district courts, reviewing its factual findings for clear error and its legal conclusions de novo. Following reversal by the Supreme Court in Dickinson v. Zurko, the Federal Circuit began giving greater deference to PTO factual findings. But it continued to review the PTO’s legal conclusions de novo, while coding an expansive list of disputed issues in patent cases as legal conclusions, even when they …

Indecency Regulation Of The Fcc And Censorship Law In Republic Korea: Comparison And Contrasts, Min-Soo "Minee" Roh

Upper Level Writing Requirement Research Papers

Regulating music on radio or television is not a straightforward process, as the music is comprised of lyrics of words. On top of the lyrics, any music performance has an additional layer of choreography and dress code. If any individual elements or combined elements is obscene or indecent, the government attempts to regulate broadcasting both music and performance. This leads to regulating general speech on communications and it requires this paper to look into regulation of broadcasting in general and specific examples of music broadcasting regulation on radio and television, particularly, in the United States (“States”) and in Republic of …

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 …

The Law And Accessible Texts: Reconciling Civil Rights And Copyrights, Brandon Butler, Prue Adler, Krista Cox

Copyright, Fair Use, Scholarly Communication, etc.

Executive Summary

Institutions of higher education (IHEs—colleges, community colleges, and universities) have a mission to provide all students, including those with disabilities (a physical or mental impairment that substantially limits one or more major life activities), with opportunities for a rich, deep, and equitable learning experience, and to provide all researchers with access to a comprehensive and varied collection of information resources to support their work. Several disability rights laws create obligations for IHEs to ensure that students and researchers with disabilities have access to resources, including texts, at a level that is as close as reasonably possible to the …

Indigenous Data Governance: Strategies From United States Native Nations, Stephanie Russo Carroll, Desi Rodriguez-Lonebear, Andrew Martinez

Copyright, Fair Use, Scholarly Communication, etc.

Data have become the new global currency, and a powerful force in making decisions and wielding power. As the world engages with open data, big data reuse, and data linkage, what do data-driven futures look like for communities plagued by data inequities? Indigenous data stakeholders and non-Indigenous allies have explored this question over the last three years in a series of meetings through the Research Data Alliance (RDA). Drawing on RDA and other gatherings, and a systematic scan of literature and practice, we consider possible answers to this question in the context of Indigenous peoples vis-á-vis two emerging concepts: Indigenous …

The Landscape Of Rights And Licensing Initiatives For Data Sharing, Sam Grabus, Jane Greenberg

Copyright, Fair Use, Scholarly Communication, etc.

Over the last twenty years, a wide variety of resources have been developed to address the rights and licensing problems inherent with contemporary data sharing practices. The landscape of developments is this area is increasingly confusing and difficult to navigate, due to the complexity of intellectual property and ethics issues associated with sharing sensitive data. This paper seeks to address this challenge, examining the landscape and presenting a Version 1.0 directory of resources. A multi-method study was pursued, with an environmental scan examining 20 resources, resulting in three high-level categories: standards, tools, and community initiatives; and a …

Are Literary Agents (Really) Fiduciaries?, Jacqueline Lipton

Articles

2018 was a big year for “bad agents” in the publishing world. In July, children’s literature agent Danielle Smith was exposed for lying to her clients about submissions and publication offers. In December, major literary agency Donadio & Olson, which represented a number of bestselling authors, including Chuck Palahnuik (Fight Club), filed for bankruptcy in the wake of an accounting scandal involving their bookkeeper, Darin Webb. Webb had embezzled over $3 million of client funds. Around the same time, Australian literary agent Selwa Anthony lost a battle in the New South Wales Supreme Court involving royalties she owed to her …

Media And Repository Support Unit, University Of Nebraska–Lincoln Libraries, Annual Report July 2018–June 2019, Deeann Allison, Linnea Fredrickson, Sue A. Gardner, Richard Graham, Paul Royster, John Wiese, Andrew Cano, Kate Kane, Jennifer L. Thoegersen

Copyright, Fair Use, Scholarly Communication, etc.

Increasingly, libraries are recognizing the importance of providing access to the research output of their universities. In a June 10, 2019, news release from the provosts of the Big Ten Academic Alliance (BTAA) titled “Sustaining Values and Scholarship” (available at https://tinyurl.com/yyu94aa9), they state, “The Big Ten Academic Alliance will continue its advocacy for a sustainable and open ecosystem of publication. . . . Collectively, our institutions’ more than 50,000 faculty are supported by over $10 billion (2017) in research funding, and our institutions have similarly invested significantly in our capacity to further our missions to advance knowledge. Together, we produce …

“A World Not Dependent On Sales: Sustainable, Oa Monograph Publishing”--P2l3 Summary And Next Steps: P2l3 Meeting June 14, 2019, Detroit, Mi, Association Of University Presses, Association Of Research Libraries

Copyright, Fair Use, Scholarly Communication, etc.

Table of Contents P2L3 Meeting Planning Committee 3 Land Acknowledgment 3 Participants 3 Introduction 5 Presentations 7 Opening Plenary: Generous Thinking Lightning Rounds Promising New Models: MIT and University of Michigan MIT University of Michigan Highlights from Roundtable Discussions 11 Digital Scholarship and Digital Humanities Flipping the Financial Model for Monographs Engaging with Library Communications and Development Next Steps for P2L 13 Endnotes 14

In choosing as its theme a “world not dependent on sales,” the P2L3 Meeting Planning Committee situated P2L in the context of a long-running Andrew W. Mellon Foundation–funded research and innovation agenda on monographs in the …

United States Response To Questionnaire Concerning Managing Copyright, June M. Besek, Jane C. Ginsburg, Philippa Loengard, Ralph Peer

Faculty Scholarship

ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.

Renewed Efficiency In Administrative Patent Revocation, Saurabh Vishnubhakat

Faculty Scholarship

Administrative patent revocation in the U.S. is poised to enter a new period of efficiency, though ironically it will be an efficiency that the America Invents Act originally put in place. The Court’s recent approval of the constitutionality of Patent Trial and Appeal Board ("PTAB") proceedings was blunted by the Court’s accompanying rejection of partial institution. This Patent Office practice of accepting and denying validity review petitions piecemeal had been a key part of the agency’s procedural structure from the start. As a result, the Court’s decision in SAS Institute v. Iancu to require a binary choice — either fully …

Elite Patent Law, Paul Gugliuzza

Faculty Scholarship

Over the last twenty years, one of the most significant developments in intellectual property law has been the dramatic increase in the number of patent cases decided by the U.S. Supreme Court. That same time period has also seen the emergence of a small, elite group of lawyers specializing not in any particular area of substantive law but in litigation before the Supreme Court. In recent empirical work, I linked the Court’s growing interest in patent law to the more frequent participation of elite Supreme Court lawyers in patent cases, particularly at the cert. stage. Among other things, I found …

Scotus's Second Take On Trademark Registration As Speech, Christine Farley

Editorial Contributions

Professor Farley offers her take on Iancu v. BrunettiURL: https://patentlyo.com/patent/2019/06/scotuss-trademark-registration.html

Copyrightx: Lessons Learned, Samuel Simas

Library Staff Publications, Presentations & Journal Articles

This presentation provides an overview of an engaging professional development course that Sam participated in during the spring semester of 2019. This presentation will be most helpful to library professionals who guide faculty, students, and staff through intellectual property and copyright considerations or to anyone interested in participating in the CopyrightX course.

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.

The Future Of Open Access Books: Findings From A Global Survey Of Academic Book Authors, Ros Pyne, Christina Emery, Mithu Lucraft, Anna Sophia Pinck

Copyright, Fair Use, Scholarly Communication, etc.

This report presents the findings from an online survey conducted in February and March 2019 to gather author feedback on open access (OA) books. Survey questions were designed to build on previous studies of OA for journal authors, as well as previous research on OA books, to assess the current awareness, attitudes and behaviours of authors who have and have not previously published OA. The raw anonymised data has been made freely available under a CC BY licence.2 Of 5,509 responses, 2,542 book authors completed the survey, and only these responses have been analysed here. Of these, 407 authors had …

Open And Equitable Scholarly Communications: Creating A More Inclusive Future, Nancy Maron, Rebecca Kennison, Paul Bracke, Nathan Hall, Isaac Gilman, Kara Malenfant, Charlotte Roh, Yasmeen Shorish

Copyright, Fair Use, Scholarly Communication, etc.

For many years, the academic and research library workforce has worked to accelerate the transition to more open and equitable systems of scholarship. While significant progress has been made, barriers remain. The Association of College and Research Libraries (ACRL) seeks to stimulate further advances through this action- oriented research agenda, which is designed to provide practical, actionable information for academic librarians; include the perspectives of historically underrepresented communities in order to expand the profession’s understanding of research environments and scholarly communication systems; and point librarians and other scholars toward important research questions to investigate. This report represents a yearlong process …

Opting Into Device Regulation In The Face Of Uncertain Patentability, Rebecca S. Eisenberg

Articles

This article examines the intersection of patent law, FDA regulation, and Medicare coverage in a particularly promising field of biomedical innovation: genetic diagnostic testing. First, I will discuss current clinical uses of genetic testing and directions for further research, with a focus on cancer, the field in which genetic testing has had the greatest impact to date. Second, I will turn to patent law and address two recent Supreme Court decisions that called into question the patentability of many of the most important advances in genetic testing. Third, I will step outside patent law to take a broader view of …

Owning Colors, Deborah R. Gerhardt, John Mcclanahan Lee

Faculty Publications

Part I of this article explores how different disciplines have contended with understanding color as a signifier of embodied and referential meaning. As a path towards understanding embodied meaning, we summarize what scientific literature teaches about the process behind color vision and biological responses to different color wavelengths. We then turn to the referential or learned meaning of colors. The scholarly literature from psychology, art, religious history, marketing, political science, and behavioral economics overwhelmingly supports the proposition that color sends varied and contradictory expressive signals that are elastic over time and cultural context. Given the many possible and contradictory messages …

The Mixed Case For A Ptab Off-Ramp, Saurabh Vishnubhakat

Faculty Scholarship

This Essay begins from the emerging agenda in the political branches for reforming various aspects of the USPTO Patent Trial and Appeal Board, and focuses on a particular reform: the creation of a PTAB off-ramp whereby a patent being challenged in an administrative revocation proceeding could be removed into a system primarily aimed at amending its claims and preserving its validity. To put the proposal into perspective, the Essay presents specific empirical trends, largely unexplored until now, that implicate patent reliance interests to which the PTAB has done injury. Ultimately, because the benefits and costs from a PTAB off-ramp are …

The Patentability Of Genetic Therapies: Car-T And Medical Treatment Exclusions Around The World, Luis Gil Abinader, Jorge L. Contreras

Utah Law Faculty Scholarship

More than eighty countries, including the members of the European Patent Convention, the United States, Canada, New Zealand, China, Japan, and India, currently exclude or limit the patentability of methods of medical treatment. CAR-T and other recent gene and cell therapies, which operate based on the extraction of genetic or cellular material from a patient, the alteration of such material, and the reintroduction of such material to the patient’s body, should, under most or all of these legal regimes, be considered medical treatments that are thus excluded from patentability, or as to which patent enforcement is limited. Accordingly, we urge …

Sui-Genericide, Jorge L. Contreras

Utah Law Faculty Scholarship

Generic terms – those that describe a general class of goods or services – are not eligible for trademark protection. Firms have historically gone to great lengths to prevent their trademarks from becoming generic – a fate often referred to as genericide. But in a few rare cases, firms have voluntarily declared certain terms that they have created to be generic, a phenomenon that I refer to as “sui-genericide”. This article explores the little-discussed phenomenon of sui-genericide, both its origins in government-sponsored programs of the mid-twentieth century and its most recent incarnation in the area of technical interoperability standards. Though …

Coalition S: Accelerating The Transition To Full And Immediate Open Access To Scientific Publications, Science Europe

Copyright, Fair Use, Scholarly Communication, etc.

Part I: The Plan S Principles: “With effect from 2021, all scholarly publications on the results from research funded by public or private grants provided by national, regional and international research councils and funding bodies, must be published in Open Access Journals, on Open Access Platforms, or made immediately available through Open Access Repositories without embargo.”

Part II: Guidance on the Implementation of Plan S 1. Aim and Scope Plan S aims for full and immediate Open Access to peer-reviewed scholarly publications from research funded by public and private grants. cOAlition S, the coalition of research funders that have committed …

Regulation And The Marginalist Revolution, Herbert J. Hovenkamp

All Faculty Scholarship

The marginalist revolution in economics became the foundation for the modern regulatory State with its “mixed” economy. Marginalism, whose development defines the boundary between classical political economy and neoclassical economics, completely overturned economists’ theory of value. It developed in the late nineteenth century in England, the Continent and the United States. For the classical political economists, value was a function of past averages. One good example is the wage-fund theory, which saw the optimal rate of wages as a function of the firm’s ability to save from previous profits. Another is the theory of corporate finance, which assessed a corporation’s …

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 …