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Intellectual Property Law

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2016

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Full-Text Articles in Law

Berne-Forbidden Formalities And Mass Digitization, Jane C. Ginsburg Jan 2016

Berne-Forbidden Formalities And Mass Digitization, Jane C. Ginsburg

Faculty Scholarship

This Essay addresses the Berne Convention's prohibition on the imposition of "formalities" on the "enjoyment and the exercise" of copyright, and the compatibility with that cornerstone norm of international endeavors to facilitate mass digitization, notably by means of extended collective licensing and "opt-out" authorizations. In the Berne context, "enjoyment" means the existence and scope of rights; "exercise" means their enforcement. Voluntary provision of copyright notice and of title-searching information on a public register of works and transfers of rights is fully consistent with Berne and should be encouraged. But the Berne Convention significantly constrains member states' ability to impose mandatory …

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Who Owns Gene Editing? Patents In The Time Of Crispr, Jacob S. Sherkow Jan 2016

Who Owns Gene Editing? Patents In The Time Of Crispr, Jacob S. Sherkow

Other Publications

New gene-editing technologies, like CRISPR, promise revolutionary advances in biology and medicine. However, several patent disputes in the USA and UK may have complicated who can use CRISPR. What does this mean for the future of gene editing?

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Pursuit Of Profit Poisons Collaboration, Jacob S. Sherkow Jan 2016

Pursuit Of Profit Poisons Collaboration, Jacob S. Sherkow

Other Publications

The CRISPR–Cas9 patent battle demonstrates how overzealous efforts to commercialize technology can damage science.

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Understanding Access To Things: A Knowledge Commons Perspective, Michael J. Madison Jan 2016

Understanding Access To Things: A Knowledge Commons Perspective, Michael J. Madison

Book Chapters

This chapter explores the related ideas of access to knowledge resources and shared governance of those resources, often known as commons. Knowledge resources consist of many types and forms. Some are tangible, and some are intangible. Some are singular; some are reproduced in copies. Some are singular or unique; some are collected or pooled. Some are viewed, used, or consumed only by a single person; for some resources, collective or social consumption is the norm. Any given resource often has multiple attributes along these dimensions, depending on whether one examines the resource’s physical properties, its creative or inventive properties, or …

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Meet The Patents: Fostering Innovation And Reducing Costs By Opening Patent Portfolios, Sean D. Harding Jan 2016

Meet The Patents: Fostering Innovation And Reducing Costs By Opening Patent Portfolios, Sean D. Harding

Journal of Business & Technology Law

No abstract provided.

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The Questionable Origins Of The Copyright Infringement Analysis, Shyamkrishna Balganesh Jan 2016

The Questionable Origins Of The Copyright Infringement Analysis, Shyamkrishna Balganesh

Faculty Scholarship

Central to modern copyright law is the test for determining infringement, famously developed by Judge Jerome Frank in the landmark case of Arnstein v. Porter. The “Arnstein test,” which courts continue to apply, demands that the analysis be divided into two components: actual copying – the question whether the defendant did in fact copy – and improper appropriation – the question whether such copying, if it did exist, was unlawful. Somewhat counterintuitively, though, the test treats both components as pure questions of fact, requiring that even the question of improper appropriation go to a jury. This jury-centric approach …

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Preliminary Comments On Restatement Of Copyright, Draft 2, Jane C. Ginsburg, June M. Besek Jan 2016

Preliminary Comments On Restatement Of Copyright, Draft 2, Jane C. Ginsburg, June M. Besek

Faculty Scholarship

Thank you for the opportunity to comment on Preliminary Draft 2 of the Restatement of Copyright. These are preliminary comments, given the short time frame provided to review the draft, and we anticipate sending further comments after we’ve had the opportunity to study the draft further, or as a follow-up to the Advisers’ meeting and the Consultative Group meeting on November 10 and 11, 2016, respectively.

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Debunking The Myth Of The Copyright Troll Apocalypse, Shyamkrishna Balganesh, Jonah B. Gelbach Jan 2016

Debunking The Myth Of The Copyright Troll Apocalypse, Shyamkrishna Balganesh, Jonah B. Gelbach

Faculty Scholarship

Professor Matthew Sag’s Copyright Trolling, An Empirical Study tells a riveting tale of a litigation system run amok.1 A plaintiff files suit in federal court. Each instance of alleged unlawful conduct targeted in the suit may well entail little in the way of actual damages, and for that reason the complaint demands statutory rather than actual damages. The conduct in question is as common as it is allegedly unlawful and, in some people’s views, this conduct isn’t particularly objectionable. And the economics of the litigation in question simply don’t make sense without the aggregation of claims related to many individuals. …

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Copyright And Good Faith Purchasers, Shyamkrishna Balganesh Jan 2016

Copyright And Good Faith Purchasers, Shyamkrishna Balganesh

Faculty Scholarship

Good faith purchasers for value – individuals who unknowingly and in good faith purchase property from a seller whose own actions in obtaining the property are of questionable legality – have long obtained special protection under the common law. Despite the seller’s own actions being tainted, these purchasers obtain valid title and are free to transfer the property without restriction. Modern copyright law, however, does just the opposite. Individuals who unknowingly, and in good faith, purchase property embodying an unauthorized copy of a protected work are altogether precluded from subsequently alienating such property without running afoul of copyright’s distribution right. …

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Empirical Evidence Of Drug Pricing Games - A Citizen's Pathway Gone Astray, Robin C. Feldman, Evan Frondorf, Andrew Cordova Dec 2015

Empirical Evidence Of Drug Pricing Games - A Citizen's Pathway Gone Astray, Robin C. Feldman, Evan Frondorf, Andrew Cordova

Robin C Feldman

The FDA’s citizen petition process was created in the 1970s as part of an effort to fashion more participatory regimes, in which ordinary citizens could access the administrative process. The theoretical underpinnings hypothesize that a participatory structure will prevent regulatory agencies from being captured by the very industries they were intended to police. Anecdotal evidence suggests, however, that the FDA’s citizen petition process may have taken a different turn. This empirical study explores whether pharmaceutical companies are systematically using citizen petitions to try to delay the approval of generic competitors. Delaying generic entry of a drug — even by a …

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Patent Licensing, Technology Transfer, & Innovation, Robin C. Feldman, Mark A. Lemley Dec 2015

Patent Licensing, Technology Transfer, & Innovation, Robin C. Feldman, Mark A. Lemley

Robin C Feldman

Traditional justifications for patents are all based on direct or indirect contribution to the creation of new products. Patents serve the social interest if they provide not just invention, but innovation the world would not otherwise have. Non-practicing entities (NPEs) as well as product-producing companies can sometimes provide such innovation, either directly, through working the patent or transfer of technology to others who do, or indirectly, when others copy the patented innovation. The available evidence suggests, however, that patent licensing demands and lawsuits from NPEs are normally not cases that involve any of these activities.

Some scholars have argued that …

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Open Letter On Ethical Norms In Intellectual Property Scholarship, Robin C. Feldman, Mark A. Lemley, Jonathan S. Masur, Arti K. Rai Dec 2015

Open Letter On Ethical Norms In Intellectual Property Scholarship, Robin C. Feldman, Mark A. Lemley, Jonathan S. Masur, Arti K. Rai

Robin C Feldman

As scholars who write in intellectual property (“IP”), we write this letter with aspirations of reaching the highest ethical norms possible for our field. In particular, we have noted an influx of large contributions from corporate and private actors who have an economic stake in ongoing policy debates in the field. Some dollars come with strings attached, such as the ability to see or approve academic work prior to publication or limitations on the release of data. IP scholars who are also engaged in practice or advocacy must struggle to keep their academic and advocacy roles separate.

Our goal is …

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Regulatory Property: The New Ip, Robin C. Feldman Dec 2015

Regulatory Property: The New Ip, Robin C. Feldman

Robin C Feldman

For thirty years, a new form of intellectual property has grown up quietly beneath the surface of societal observation. It is a set of government-granted rights that have the quintessential characteristic of intellectual property and other forms of property — that is, the right to exclude others from the territory. 

The impact of this form of IP on the US health care system, in particular, is enormous. In 2014, more than 40% of all new drugs approved by the FDA came through just one of these portals, with the companies collecting regulatory property rights along the way. 

Some forms of …

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College Athletic Departments As Media Organizations And The Regulation Of Content: Issues For The Digital Age, Steve Dittmore Dec 2015

College Athletic Departments As Media Organizations And The Regulation Of Content: Issues For The Digital Age, Steve Dittmore

Steve Dittmore

No abstract provided.

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Fair Use, Notice Failure, And The Limits Of Copyright As Property Dec 2015

Fair Use, Notice Failure, And The Limits Of Copyright As Property

Joseph P. Liu

If we start with the assumption that copyright law creates a system of property rights, to what extent does this system give adequate notice to third parties regarding the scope of such rights, particularly given the prominent role played by the fair use doctrine? Although the fair use doctrine may provide adequate notice to sophisticated third parties, it fails to provide adequate notice to less sophisticated parties, including the general public. Specifically, the fair use doctrine imposes nearly insuperable informational burdens upon the general public regarding the scope of the property entitlement and the corresponding duty to avoid infringement. Moreover, …

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Copyrights, Privacy, And The Blockchain, Tom W. Bell Dec 2015

Copyrights, Privacy, And The Blockchain, Tom W. Bell

Tom W. Bell

The law of the United States forces authors to choose between copyrights and privacy rights. Federal lawmakers have noticed and tried to remedy that problem. The Copyright Act makes express provisions for anonymous and pseudonymous works. The Copyright Office has tried to remedy that tension, too; copyright registration forms do not outwardly require authors to reveal their real world identities. Nonetheless, authors still face a choice between protecting their privacy and enjoying one of copyright’s most powerful incentives: the prospect of transferring to another the exclusive right to use a copyrighted work. That power proves useful, to say the least, …

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Prioritising Human Development In African Intellectual Property Law, Janewa Osei Tutu Dec 2015

Prioritising Human Development In African Intellectual Property Law, Janewa Osei Tutu

J. Janewa Osei-Tutu

The global intellectual property structure has been criticised for requiring developing nations to adopt
intellectual property standards that are appropriate for industrialised countries. Some commentators have
observed that industrialised nations, such as the United States, developed their economies by borrowing
from others, but that through the use of globalised intellectual property standards, they have effectively
limited other nations from doing the same. This article does not aim to revisit the question of the suitability
of the existing intellectual property standards for developing countries. Nor does it seek to analyse whether,
as a general proposition, intellectual property rights should be expanded …

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Human Development As A Core Objective Of Global Intellectual Property, Janewa Osei Tutu Dec 2015

Human Development As A Core Objective Of Global Intellectual Property, Janewa Osei Tutu

J. Janewa Osei-Tutu

Global intellectual property obligations shape domestic laws and policies. More
than twenty years since the first multilateral trade-based intellectual property
agreement, critics contend that global intellectual property law prioritizes intellectual
property rights over other interests, and profits over people. Faced with international
intellectual-property obligations, nations have been forced to justify laws and policies
designed to promote human development in areas such as health and education as
exceptions to intellectual property protection. This is the result of legal
interpretations that treat the objectives of intellectual property protection and human
development as inconsistent with one another. Drawing on the objectives of trade …

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The Interconnections Between Entrepreneurship, Science, And The Patent System, Amy L. Landers Dec 2015

The Interconnections Between Entrepreneurship, Science, And The Patent System, Amy L. Landers

Amy L. Landers

The recognition that innovation drives the creation of new knowledge is both significant and an underappreciated aspect of patent theory. A full assessment of the impact of the most recent recent patentability standards cannot be performed without examining the relationships between science, the patent system, and innovation within a more realistic context. To do so, the system must loosen its hold on the linear model of innovation. 

More broadly, these insights allow us to think about the patent system in ways that do not echo the traditional narrative that places science and innovation at the opposite ends of a continuum. …

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Why K-Pop Will Continue To Dominate Social Media: Jenkins' Convergence Culture In Action, Keidra Chaney, Raizel Liebler Dec 2015

Why K-Pop Will Continue To Dominate Social Media: Jenkins' Convergence Culture In Action, Keidra Chaney, Raizel Liebler

Raizel Liebler

YouTube’s first music awards surprised many mainstream music fans in 2013, when the Korean pop (“K-pop”) group Girls’ Generation beat out many U.S. pop music stars for Video of the Year (Yang, 2013). In 2015, the fans of K-pop group T-ara won Billboard’s Fan Army Face-Off, beating out the fans of well-established Western artists like One Direction and Beyoncé (“Fan Army,” 2015). The matchup against One Direction led to the globally trending hashtag on Twitter, #WeLove1DandKpop (“Fan Army,” 2015). While some U.S. critics and Western music fans may see these events as flukes, there is a complex history at play …

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Private Technology (Foreword), Daniel Harris Brean Dec 2015

Private Technology (Foreword), Daniel Harris Brean

Daniel Harris Brean

Privacy and technology issues tend to implicate one another. Sometimes they reinforce each other, such as when improved data security thwarts hackers. But often the use of technology diminishes privacy because, in order to benefit from the technology, users must surrender some personal, otherwise private information. In such cases the technology may be powerful, profitable, fun, or convenient, but the privacy consequences of its use can be quite profound.

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Can Dna Be Speech?, Jorge R. Roig Dec 2015

Can Dna Be Speech?, Jorge R. Roig

Jorge R Roig

DNA is generally regarded as the basic building block of life itself. In the most fundamental sense, DNA is nothing more than a chemical compound, albeit a very complex and peculiar one. DNA is an information-carrying molecule. The specific sequence of base pairs contained in a DNA molecule carries with it genetic information, and encodes for the creation of particular proteins. When taken as a whole, the DNA contained in a single human cell is a complete blueprint and instruction manual for the creation of that human being.
In this article we discuss myriad current and developing ways in which …

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