Law Commons^™

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 …

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 …

The Coming Copyright Judge Crisis, Saurabh Vishnubhakat, Dave Fagundes

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 …

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.

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 …

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 …

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 …

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. …

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 …

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. …

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 …

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 …

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 …

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, …

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 …

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 …

The Fiction Of Nfts And Copyright Infringement, Emily T. Behzadi

Faculty Scholarship

In the first quarter of 2021, the sales of art in the form of Non-Fungible Tokens (“NFTs”) reached over $200 billion dollars. The arrival of NFTs in the mainstream art market has profoundly shaped the way artists exploit their works. This sensational boom has attracted some of the world's biggest names across pop culture and sports, including celebrities such as Snoop Dogg, Paris Hilton, Post Malone, Tom Brady and Rob Gronkowski, to create their own NFT art. Director Quentin Tarantino has also capitalized on this craze through the creation of an NFT collection based on the film Pulp Fiction. However, …

Hip Hop And The Law : Presented By Intellectual Property Law Association 03/31/2022, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Whose Progress?, Laura A. Heymann

Faculty Publications

Article I, Section 8, Clause 8 of the U.S. Constitution provides that Congress shall have power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” These words have been the subject of countless books and scholarly articles. Professor Silbey’s engaging contribution [in Against Progress: Intellectual Property Law and Fundamental Values in the Internet Age] to the conversation focuses on one word—progress—and what it should mean as we think about intellectual property law’s motivations and justifications in the twenty-first century.

But even …

Ruth Bader Ginsburg’S Copyright Jurisprudence, Ann Bartow, Ryan G. Vacca

Law Faculty Scholarship

[Excerpt} "When Justice Ruth Bader Ginsburg died on September 18, 2020, the world lost a trailblazer for gender equality, a pop culture icon, a feisty liberal luminary who fought on behalf of the disenfranchised in the areas of civil rights and social justice, and an inspiration to millions of people. She will long be remembered for the social changes she helped effectuate as an advocate, scholar, and jurist.

Her amazing civil rights legacy overshadows other areas where Justice Ginsburg’s contributions have been substantial. This Article discusses one of the most interesting: copyright law. During her time as a jurist on …

The Supreme Court’S Chief Justice Of Intellectual Property Law, Bob Gomulkiewicz

Articles

Justice Clarence Thomas is one of the most recognizable members of the United States Supreme Court. Many people recall his stormy Senate confirmation hearing and notice his fiery dissenting opinions that call on the Court to reflect the original public meaning of the Constitution. Yet observers have missed one of Justice Thomas’s most significant contributions to the Court—his intellectual property law jurisprudence. Justice Thomas has authored more majority opinions in intellectual property cases than any other Justice in the Roberts Court era and now ranks as the most prolific author of patent law opinions in the history of the Supreme …

Protecting The Public Domain And The Right To Use Copyrighted Works: Four Decades Of The Eleventh Circuit’S Copyright Law Jurisprudence, David E. Shipley

Scholarly Works

This article is about the importance of the copyright law jurisprudence from the U.S. Court of Appeals for the Eleventh Circuit. This appellate court turns 40 in 2021, and it has rendered many influential copyright law decisions in the last four decades. Its body of work is impressive. This article discusses the court’s important decisions in the following areas: the originality standard; the application of the U.S. Supreme Court’s Feist decision to compilations, directories, computer software, architectural works, and other creative works like movies, photographs, and characters; copyright protection for unfixed works; the scope of the government edicts doctrine; and, …

The Ai-Copyright Challenge: Tech-Neutrality, Authorship, And The Public Interest, Carys Craig

All Papers

Many of copyright’s core concepts—from authorship and ownership to infringement and fair use—are being challenged by the rapid rise of generative AI. Whether in service of creativity or capital, however, copyright law is perfectly capable of absorbing this latest innovation. More interesting than the doctrinal debates that AI provokes, then, is the opportunity it presents to revisit the purposes of the copyright system in the age of AI. After introducing the AI-copyright challenge in Part 1, Part 2 considers the guiding principles and normative objectives that underlie—and so ought to inform—copyright law and its response to AI technologies. It proposes …