Law Commons^™

Lost In Transit: How Enforcement Of Foreign Copyright Judgements Undermines The Right To Research, Naama Daniel

Joint PIJIP/TLS Research Paper Series

The ease of travel in the globalized, modern world is a double-edged sword for the right to research: while research opportunities are bolstered due to information and data traveling extremely easily in the digital world, the right to research may be undermined by the easy travel of foreign copyright judgments between countries. This article analyzes thoroughly, for the first time, the threats posed to the right to research by private international law instruments on recognition and enforcement of foreign copyright judgments. This article uses a theoretical and doctrinal perspective to analyze the matter, demonstrating that the right to research, aimed …

Government Role In Realising A ‘Right’ To Research In Africa, Chijioke Okorie

Joint PIJIP/TLS Research Paper Series

Development agendas and plans such as World Intellectual Property Organisation (WIPO) Development Agenda, African Union Agenda 2063, South Africa’s National Development Plan 2030 and Nigeria’s National Development Plan 2021 – 2025, etc. indicate the need for and benefits of research for development. Research as an activity is needed for countries to sharpen their innovative edge and contribute to global scientific and technological advancement. Recent scholarship has highlighted the positive impact on national development of copyright exceptions implementing a right to research in the form of either a complete defence to copyright infringement, or, as user rights. However, the realisation of …

Limitations And Exceptions In International Copyright And Related Rights Treaties, Sean Flynn

Joint PIJIP/TLS Research Paper Series

Copyright limitations and exceptions have been an integral part of international copyright and related rights treaties since the original text of the Berne Convention in 1886, which protected the ability to adopt exceptions for uses for “educational” and “scientific” uses. Since that instrument, there has been great -- if uneven -- development of norms on limitations and exceptions. Currently, the World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights is considering limitations and exceptions in the draft text for a treaty on broadcast organizations as well as a proposal from the African Group for a work programme on …

The Coming Copyright Judge Crisis, Saurabh Vishnubhakat, Dave Fagundes

Faculty Articles

Commentary about the Supreme Court's 2021 decision in United States v. Arthrex, Inc. has focused on the nexus between patent and administrative law. But this overlooks the decision's seismic and as-yet unappreciated implication for copyright law: Arthrex renders the Copyright Royalty Board ("CRB") unconstitutional. The CRB has suffered constitutional challenge since its 2004 inception, but these were seemingly resolved in 2011 when the D.C. Circuit held that the CRB's composition did not offend the Appointments Clause as long as Copyright Royalty Judges ("CRJs") were removable atwill. But when the Court invalidated the selection process for administrative patent judges on a …

Generative Artificial Intelligence And Copyright Law, Christopher T. Zirpoli

Copyright, Fair Use, Scholarly Communication, etc.

Recent innovations in artificial intelligence (AI) are raising new questions about how copyright law principles such as authorship, infringement, and fair use will apply to content created or used by AI. So-called “generative AI” computer programs—such as Open AI’s DALL-E 2 and ChatGPT programs, Stability AI’s Stable Diffusion program, and Midjourney’s self-titled program—are able to generate new images, texts, and other content (or “outputs”) in response to a user’s textual prompts (or “inputs”). These generative AI programs are “trained” to generate such works partly by exposing them to large quantities of existing works such as writings, photos, paintings, and other …

©Ancelling Dr. Seuss, Cathay Y. N. Smith

Faculty Journal Articles & Other Writings

Dr. Seuss Enterprises announced in March 2021 that it would no longer license or publish six of its children’s books because those books portrayed people in racist or culturally stereotypical ways. Since then, the public has learned through news reports and social media that other publishers have similarly reviewed and altered their catalogues of classic children’s works, including withdrawing them from the public, editing them to remove problematic content, or adding disclaimers to warn the public about racially insensitive or outdated content. The public reaction to Dr. Seuss’s decision and these other actions has been largely divided. Some criticized these …

There's No Such Thing As Independent Creation, And It's A Good Thing, Too, Christopher Buccafusco

Faculty Scholarship

Independent creation is the foundation of U.S. copyright law. A work is only original and, thus, copyrightable to the extent that it is independently created by its author and not copied from another source. And a work can be deemed infringing only if it is not independently created. Moreover, independent creation provides the grounding for all major theoretical justifications for copyright law. Unfortunately, the doctrine cannot bear the substantial weight that has been foisted upon it. This Article argues that copyright law’s independent creation doctrine rests on a set of discarded psychological assumptions about memory, copying, and creativity. When those …

The Knottiest Of Gordian Knots: Article 17 Of The Copyright Directive, Mark Hyland, Thomas Perry

Articles

This article analyses the much debated Article 17 of the EU Copyright Directive (Directive 2019/790) in the light of last year’s comprehensive European Commission guidance. The aim of the guidance is to support a correct and coherent transposition of Article 17 across the EU27. Following the recent landmark judgment in Case C-401/19, Poland v European Parliament and Council of the EU, some commentators have now suggested that it might be timely for the European Commission to issue further guidance on Article 17.

Copyright’S Capacity Gap, Andrew Gilden, Eva E. Subotnik

Faculty Publications

Most areas of law require that individuals meet a certain threshold of capacity before their decisions — e.g., to marry, to enter into a contract, or to execute an estate plan — are given legal effect. Copyright law, by contrast, gives legal effect to creative decisions by granting the decisionmaker many decades of exclusive rights so long as they are a human being and have demonstrated a “creative spark.” This Article examines the overlooked consequences of this gap in capacity standards between copyright and other areas of law. It shows that this gap has produced numerous opportunities for vulnerable creators …

Copyright And Racism, Kimber Thomas

Copyright, Fair Use, Scholarly Communication, etc.

Slides on copyright and racism by Dr. Kimber Thomas with an emphasis on United States copyright.

Includes points related to the origin of United States copyright law, original authorship and tangibility requirements, creation of works via oral or visual tradition and knowledge, the useful articles exclusion, and works made for hire.

Of Lock-Breaking And Stock Taking: Ip, Climate Change And The Right To Repair In Canada, Graham Reynolds

All Faculty Publications

This paper argues that Canadian governments have both legal and moral obligations to act to combat climate change. In seeking to fulfill these obligations, Canadian governments should pay particular attention to Canada’s intellectual property (IP) regime. This paper argues that given the centrality of IP to Canada’s economy, a comprehensive review is required in order to determine whether and the extent to which elements of Canada’s IP regime contribute to climate change or impede climate action. To illustrate the need for such a review, this paper will highlight one example of how Canada’s IP regime, as currently structured, impedes the …

Reconceptualizing Open Access To Theses And Dissertations, Orit Fischman Afori, Dalit Ken-Dror Feldman

Joint PIJIP/TLS Research Paper Series

Theses and dissertations (TD) are academic research projects that are conducted by graduate students to acquire a high academic degree, such as a PhD. The perception of the written TD has evolved over the years, following changes concerning the purpose of advanced academic studies. Today, these academic fruits should meet a high standard of academic innovation, which is understood broadly as encompassing not only knowledge concerning basic science but also the knowledge that generates social and economic value for society.

The modern perception of TD has generated a call for their greater accessibility, as part of the Open Science movement. …

Twenty Years Of Us Digital Copyright: Adapting From Analogue, Jane C. Ginsburg

Faculty Scholarship

This review of the period 2001–21 in US copyright law will summarize digital-dominated developments concerning the scope of exclusive rights and exceptions and liability regimes. It will address several developments, all related to the impact of the internet on the exploitation of works of authorship. Digital storage and communications have called into question the scope of the exclusive rights set out in the US Copyright Act, and they have considerably expanded the reach of the fair use exemption. They have strained statutory and common law regimes of secondary liability and prompted the development of a ‘volition’ predicate to primary liability. …

Hard Truths About Soft Ip, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

People routinely refer to copyright and trademark as “soft IP” to distinguish these practices from another area of intellectual property: patent. But the term reflects implicit biases against copyright and trademark doctrine and practioners. “Soft IP” implies that patent law alone is hard, even though patents are no more physically, metaphorically or intellectually hard than copyrights and trademarks. Despite stereotypes to the contrary, patents are not necessarily more practically hard: while the U.S. Patent and Trademark Office requires technical training for patent prosecutors, which excludes many women and people of color, no such experience is necessary for most patent litigators …

Questions Of Intellectual Property And Fundamental Values In The Digital Age, Jessica Silbey

Faculty Scholarship

Today's intellectual property debates, in both law and the larger society, are a bellwether of changing justice needs in the twenty-first century. As the digital age democratizes technological opportunities, it brings intellectual property law into mainstream everyday culture. This generates debates about the relationship between the constitutional interest in "the progress of science and useful arts" and other fundamental values, such as equality, privacy, and distributive justice. These values, which were not explicitly part of intellectual property regimes in prior eras, are especially challenged in today's internet world.

The article (which was presented as the annual Nies Lecture in April …

Generative And Ai Authored Artworks And Copyright Law, Michael D. Murray

Law Faculty Scholarly Articles

Generative art linked to non-fungible tokens (NFTs) is an extremely popular genre of art in the NFT universe. Many of the most famous NFT projects—CryptoPunks, Bored Ape Yacht Club, World of Women, Azuki, Chromie Squiggles, Clone X, and Moonbirds, just to name a few—involve generative art. But there is a potential copyrightability problem with generative art:

Under current United States copyright law, many examples of generative art might be held to be uncopyrightable.

Why does generative art fail in the copyrightability analysis? As discussed below, it is because the work might lack a human author. And at present, the U.S. …

Transfers And Licensing Of Copyrights To Nft Purchasers, Michael D. Murray

Law Faculty Scholarly Articles

Property as a concept in the law means the right to own and control something and to exclude others from using and controlling it. This concept often is expressed as the rights owner having a monopoly over the thing that is owned. When the term “intellectual” is added to the concept of property, it means that the thing protected is a non-tangible item devised, imagined, developed, or invented by a person or group, and that thing has value deserving of protection in the law. Copyright is one form of intellectual property (“IP”), the others being trademarks, patents, right of publicity, …

Copyright Transformative Fair Use After Andy Warhol Foundation For The Visual Arts, Inc. V. Goldsmith, Michael D. Murray

Law Faculty Scholarly Articles

On May 18, 2023, the United States Supreme Court entered its opinion in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. The Court examined the work of the renowned artist Andy Warhol (Warhol), posthumously represented by his eponymously named foundation, who had incorporated a significant portion of the visual elements from Lynn Goldsmith’s photograph of the deceased rock star Prince without Goldsmith’s permission. In a 7-2 opinion, the Court held that Warhol’s use of the Goldsmith photograph was not “transformative” and thus did not constitute fair use of the photographer’s work. This article will explain and analyze …

Generative Ai Art: Copyright Infringement And Fair Use, Michael D. Murray

Law Faculty Scholarly Articles

The discussion of AI copyright infringement or fair use often skips over all the required steps of the infringement analysis in order to focus on the most intriguing question, “Could a visual generative AI generate a work that potentially infringes a preexisting copyrighted work?” and then the discussion skips further ahead to, “Would the AI have a fair use defense, most likely under the transformative test?” These are relevant questions, but without considering the actual steps of the copyright infringement analysis, the discussion is misleading or even irrelevant. This neglecting of topics and stages of the infringement analysis fails to …

Nft Ownership And Copyrights, Michael D. Murray

Law Faculty Scholarly Articles

Non-fungible tokens (NFTs) have made enormous waves in the art, music, entertainment, and collectibles world, but the backwash of this blockchain technology has inundated and overwhelmed many peoples’ understanding of intellectual property (IP) law in general and copyright law in particular when it comes to NFTs and blockchains. Artists and creatives who mint NFTs often have very different understandings and expectations from collectors and investors who purchase and use them when it comes to the copyrights associated with the content linked to an NFT. Art law attorneys may not have gone fully down the rabbit hole that is the current …

Comments On Council Draft 7 [Black Letter And Comments], Jane C. Ginsburg

Faculty Scholarship

CD7 adopts several of the suggestions in my comments on PD8; I appreciate those modifications. CD7 does not, however, respond to a number of other criticisms and suggestions regarding PD8. For the benefit of the Council, I reprise the suggestions that I consider to be most significant to ensuring the accuracy of the draft (page and line references have been changed to reflect CD7)

A Logical Proof That The Common Good, Not Economics, Underlies Copyright, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

Copyright experts endlessly debate its purpose: economic or common good. Both sides cite to judicial language backing their interpretations, and the frequency and cost of litigation between those representing the two interests have noticeably increased over recent years.

This article aims at a simpler way to resolve the dispute, by taking a step back and starting with the definition of a government. The government of a democratic republic, particularly one described as “of the people, by the people, and for the people,” has a single purpose: to address the common concerns of its people.

The following philosophical argument is a …

The 14th Annual Sir Hugh Laddie Lecture - Mr. Justice Laddie And His Intellectual Property Cases: Of Millefeuilles And A Fish Called Elvis, David Vaver

Articles & Book Chapters

For me, it was a trip through the judgments of a master craftsman who could succinctly summarize the dispute before him; weigh the conflicting evidence; say what rang true and what did not; state the applicable law, often from first principles set in their historical and policy context; and end by saying who won and lost and what to do. Copyright law might be "over-strong", as he suggested in a 1996 lecture;14 but when he had to decide whether a TV documentary critical of cheque-book journalism could freely use another channel's footage to make its point, Laddie J. said his …

The Status Of Reproduction Rights Organisations (Rros) In Africa, Desmond Oriakhogba, Dick Kawooya

Joint PIJIP/TLS Research Paper Series

This report is based on desk research conducted from June 2021 to May 2022 by way of a survey of publicly available information on Reproduction Rights Organisations (RROs) in all 55 African Union (AU) member states. It is the first of a two-part study. The second part of the study will be conducted as empirical research where data will be obtained from relevant stakeholders in the collective management systems of African countries to address key issues flagged in this report as requiring further evidence.

This report examines the current status of RROs in Africa to help inform policy and legislative …

Reforming Copyright Or Toward Another Science? A More Human Rights-Oriented Approach Under The Rebspa In Constructing A "Right To Research" For Scholarly Publishing, Klaus Beiter

Joint PIJIP/TLS Research Paper Series

This article identifies copyright impediments existing in the sphere of science, to then make (tentative) suggestions as to how these may be overcome. It focuses on scholarly publishing only, and here primarily on digital content, specifically asking whether expensive commercial scholarly publishers continue to “add value” to research in the digital era. The deficits of copyright law and potential solutions thereto are assessed in the light of the right of everyone “to enjoy the benefits of scientific progress and its applications” (REBSPA) as laid down in Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) of …

Research Exceptions In Comparative Copyright, Sean Flynn, Luca Schirru, Michael Palmedo, Andrés Izquierdo

Joint PIJIP/TLS Research Paper Series

This Article categorizes the world’s copyright laws according to the degree to which they provide exceptions to copyright exclusivity for research uses. We classify countries based on the degree to which they have a research exception in their law that is sufficiently open to be able to permit reproduction and communications of copyrighted work needed for academic (i.e. non-commercial) text and data mining (TDM) research. We show that nearly every copyright law has at least one exception that promotes uses for research purposes. We find six different approaches to the provision of research exceptions that implicate application to TDM. Notably, …

Progress As Impact: A Contemporary View Of Copyright And Patent Clause, Alina Ng

Journal Articles

This paper argues that the incentive-welfare functions of patents and copyrights would be enhanced by embracing a more purpose-driven view of inventions and creative expressions. This paper is divided into three parts to show how conceptualizing “progress” as the betterment of society through the use of impactful intellectual property will ultimately benefit both the creator and recipient of the work so that the incentive welfare function of the law is maximized. Part I of the paper explores the concept of progress as a goal undergirding the patent and copyright systems and shows how the conventional understanding of progress as “creation” …

Brief Of Amici Curiae Intellectual Property Scholars In Support Of Defendants-Appellees, Rebecca Tushnet, Laura A. Heymann

Briefs

No abstract provided.

Copyright Protection For Works In The Language Of Life, Nina Srejovic

IPIPC Papers & Reports

In 2001, the DNA Copyright Institute sought to capitalize on the fear of human cloning by offering celebrities the opportunity to use copyright to secure exclusive rights in their DNA. At the time, a Copyright Office spokesperson pointed out that a person’s DNA “is not an original work of authorship.” That statement is no longer self-evident. A scientist claims to have used CRISPR technology to create a pair of twin girls with human-altered DNA that may provide immunity to HIV infection and improved cognitive function. Through gene therapy, doctors can “author” changes to patients’ DNA to cure disease. Scientists “edit” …

Resisting Face Surveillance With Copyright Law, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

Face surveillance is animated by deep-rooted demographic and deployment biases that endanger marginalized communities and threaten the privacy of all. But current approaches have not prevented its adoption by law enforcement. Some companies have offered voluntary moratoria on selling the technology, leaving many others to fill in the gaps. Legislators have enacted regulatory oversight at the state and city levels, but a federal ban remains elusive. Both approaches require vast shifts in practical and political will, each with drawbacks. While we wait, face surveillance persists. This Article suggests a new possibility: face surveillance is fueled by unauthorized copies and reproductions …