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Intellectual Property Law

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Full-Text Articles in Law

Frand And Antitrust, Herbert J. Hovenkamp Aug 2019

Frand And Antitrust, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

This paper considers when a patentee’s violation of a FRAND commitment also violates the antitrust laws. It warns against two extremes. First, is thinking that any violation of a FRAND obligation is an antitrust violation as well. FRAND obligations are contractual, and most breaches of contract do not violate antitrust law. The other extreme is thinking that, because a FRAND violation is a breach of contract, it cannot also be an antitrust violation.

Every antitrust case must consider the market environment in which conduct is to be evaluated. SSOs operated by multiple firms are joint ventures. Antitrust’s role ...


Dancing On The Grave Of Copyright?, Anupam Chander, Madhavi Sunder Aug 2019

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 ...


The Law And Accessible Texts: Reconciling Civil Rights And Copyrights, Brandon Butler, Prue Adler, Krista Cox Jul 2019

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 ...


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 Jul 2019

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 ...


Copyrightx: Lessons Learned, Samuel Simas Jun 2019

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.


A Creative And Poetic Approach To Creative Commons License Education, Nicolas Pares, Jenelys Cox Jun 2019

A Creative And Poetic Approach To Creative Commons License Education, Nicolas Pares, Jenelys Cox

University Libraries: Staff Scholarship

A presentation given at the Kraemer Copyright Conference on June 12, 2019.

This set includes one slide deck and one handout. The slides reference works and handouts available at https://digitalcommons.du.edu/libraries_staff/2.


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 Jun 2019

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 ...


The Future Of Open Access Books: Findings From A Global Survey Of Academic Book Authors, Ros Pyne, Christina Emery, Mithu Lucraft, Anna Sophia Pinck Jun 2019

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 ...


The Patentability Of Genetic Therapies: Car-T And Medical Treatment Exclusions Around The World, Luis Gil Abinader, Jorge L. Contreras Jun 2019

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 ...


Sui-Genericide, Jorge L. Contreras Jun 2019

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 the voluntary relinquishment ...


Coalition S: Accelerating The Transition To Full And Immediate Open Access To Scientific Publications, Science Europe May 2019

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 ...


Reuse, Remix, And Create With Creative Commons Licenses, Andrée Rathemacher May 2019

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 the ...


Taxes, Spending, And Innovation, Michael Simkovic May 2019

Taxes, Spending, And Innovation, Michael Simkovic

University of Southern California Legal Studies Working Paper Series

Part I: Billionaire Taxes, https://ssrn.com/abstract=3326615.

Part III: After Paying Ultra-High Net Worth Wealth Taxes, How Much Would Billionaires Have Left to Live on?, https://ssrn.com/abstract=3340925.

Key Takeaways:

- Innovation is the product of teamwork.

- Engineers and scientists play a critical role.

- Scientific research is insufficiently rewarded financially.

- Taxes can boost innovation by funding human capital investment and basic research.

- The amount of investment is important – who owns financial assets is not.

In formulating taxation and public investment policies, we should carefully consider data and the peer reviewed literature. Claims that we can drive more ...


Data Communities: A New Model For Supporting Stem Data Sharing [Issue Brief], Danielle Cooper, Rebecca Springer May 2019

Data Communities: A New Model For Supporting Stem Data Sharing [Issue Brief], Danielle Cooper, Rebecca Springer

Copyright, Fair Use, Scholarly Communication, etc.

Excerpt (page 5):

The Data Community

This issue brief focuses on understanding what makes scholars willing to share their data – and on applying that understanding strategically in order to improve and increase sharing going forward. We recognize that this is only one aspect of the work that is needed in this area. Numerous professional organizations (CODATA, DCC, FORCE11, GO FAIR, RDA, and RDAP, to name just a few), in addition to a panoply of smaller projects and working groups, are making significant strides in defining standards and best practices in important technical areas such as metadata creation, discoverability, machine readability ...


When Research Is Relational: Supporting The Research Practices Of Indigenous Studies Scholars, Danielle Cooper Apr 2019

When Research Is Relational: Supporting The Research Practices Of Indigenous Studies Scholars, Danielle Cooper

Copyright, Fair Use, Scholarly Communication, etc.

In 2017 Ithaka S+R launched a project to explore the changing research methods and practices of Indigenous Studies scholars across Canada and the US with the goal of identifying services to better support them in ways that are also beneficial to Indigenous communities more broadly. The project was undertaken by a cohort of research teams at 11 academic libraries with guidance from a group of advisors comprised of Indigenous scholars and librarians. Each research team in the cohort developed findings and next steps based on their local research engaging with Indigenous Studies scholars at their own institutions (listed in ...


Copyright: Preserve, Protect, And Promote Your Research, Supplemental Resources, Sue Ann Gardner, Paul Royster Apr 2019

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 [Lunch And Learn Outline], Paul Royster, Sue Ann Gardner Apr 2019

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 Apr 2019

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.


Copyright: A Powerful Tool To Protect, Preserve, And Promote Your Research, Paul Royster, Sue A. Gardner Apr 2019

Copyright: A Powerful Tool To Protect, Preserve, And Promote Your Research, Paul Royster, Sue A. Gardner

Library 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 owns UNL content?

Who owns UNL courses?

Green Open access

Most commercial ...


Copyright: Protect, Preserve, And Promote Your Research, Sue Ann Gardner, Paul Royster Apr 2019

Copyright: Protect, Preserve, And Promote Your Research, Sue Ann Gardner, Paul Royster

Library Conference Presentations and Speeches

Copyright is a powerful tool to protect, preserve, and promote academic research. The slides duplicate a quiz given to workshop participants.


Copyright: Preserve, Protect, And Promote Your Research: Quiz (Key), Sue Ann Gardner Apr 2019

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.


Who Owns The Law? How To Restore Public Ownership Of Legal Publication, Leslie A. Street, David R. Hansen Apr 2019

Who Owns The Law? How To Restore Public Ownership Of Legal Publication, Leslie A. Street, David R. Hansen

Library Staff Publications

No abstract provided.


Thinking Globally About Copyright: Arsc At The World Intellectual Property Organization, Eric Harbeson Apr 2019

Thinking Globally About Copyright: Arsc At The World Intellectual Property Organization, Eric Harbeson

American Music Research Center Faculty Contributions

Though copyright is, for the most part, largely a function of the rules in any given country, much of our law is shaped by international negotiations and agreements. In addition to the normative role they play in our own laws, discussions over the likes of trade agreements and treaties play a significant role in shaping the trajectory of the laws. Currently, discussions are in progress over two potential international agreements that could have a significant impact on recorded sound collecting and access. For this reason, following on the heels of some of our recent success in domestic copyright advocacy, ARSC ...


Who Cares About Patents? Cross-Industry Differences In The Marginal Value Of Patent Term, Neel U. Sukhatme, Judd N.L. Cramer Mar 2019

Who Cares About Patents? Cross-Industry Differences In The Marginal Value Of Patent Term, Neel U. Sukhatme, Judd N.L. Cramer

Georgetown Law Faculty Publications and Other Works

How much do market participants in different industries value a marginal change in patent term (i.e., duration of patent protection)? We explore this research question by measuring the behavioral response of patentees to a rare natural experiment: a change in patent term rules, due to passage of the TRIPS agreement. We find significant heterogeneity in patentee behavior across industries, some of which follows conventional wisdom (patent term is important in pharmaceuticals) and some of which does not (it also appears to matter for some software). Our measure is highly correlated with patent renewal rates across industries, suggesting the marginal ...


Sparc* Landscape Analysis: The Changing Academic Publishing Industry – Implications For Academic Institutions, Claudio Aspesi, Nicole Allen, Raym Crow, Shawn Daugherty, Heather Joseph, Joseph Mcarthur, Nick Shockey Mar 2019

Sparc* Landscape Analysis: The Changing Academic Publishing Industry – Implications For Academic Institutions, Claudio Aspesi, Nicole Allen, Raym Crow, Shawn Daugherty, Heather Joseph, Joseph Mcarthur, Nick Shockey

Copyright, Fair Use, Scholarly Communication, etc.

Academic publishing is undergoing a major transition as some of its leaders are moving from a content-provision to a data analytics business. This is evidenced by a change in the product mix that they are selling across higher education institutions, which is expanding beyond journals and textbooks to include research assessment systems, productivity tools, online learning management systems – complex infrastructure that is critical to conducting the end-to-end business of the university. Through the seamless provision of these services, these companies can invisibly and strategically influence, and perhaps exert control, over key university decisions – ranging from student assessment to research integrity ...


Tried And True: Fair Use Tales For The Telling, Sarah E. Mccleskey, Courtney Selby Mar 2019

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 ...


Tried And True: Fair Use Tales For The Telling, Sarah E. Mccleskey, Courtney L. Selby Mar 2019

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 ...


Ten Myths Around Open Scholarly Publishing, Jonathan P. Tennant, Harry Crane, Tom Crick, Jacinto Davila, Asura Enkhbayar, Johanna Havemann, Bianca Kramer, Ryan Martin, Paola Masuzzo, Andy Nobes, Curt Rice, Bárbara R. López, Tony Ross-Hellauer, Susanne Sattler, Paul Thacker, Marc Vanholsbeeck Mar 2019

Ten Myths Around Open Scholarly Publishing, Jonathan P. Tennant, Harry Crane, Tom Crick, Jacinto Davila, Asura Enkhbayar, Johanna Havemann, Bianca Kramer, Ryan Martin, Paola Masuzzo, Andy Nobes, Curt Rice, Bárbara R. López, Tony Ross-Hellauer, Susanne Sattler, Paul Thacker, Marc Vanholsbeeck

Copyright, Fair Use, Scholarly Communication, etc.

The changing world of scholarly communication and the emergence of ‘Open Science’ or ‘Open Research’ has brought to light a number of controversial and hotly-debated topics. Yet, evidence-based rational debate is regularly drowned out by misinformed or exaggerated rhetoric, which does not benefit the evolving system of scholarly communication. The aim of this article is to provide a baseline evidence framework for ten of the most contested topics, in order to help frame and move forward discussions, practices and policies. We address preprints and scooping, the practice of copyright transfer, the function of peer review, and the legitimacy of ‘global ...


Copyright And The Music Modernization Act, Eric Harbeson Mar 2019

Copyright And The Music Modernization Act, Eric Harbeson

American Music Research Center Faculty Contributions

The Music Modernization Act of 2018 is the most significant update to U.S. copyright law in many decades. Title 2 of the Act provides a long-needed, if imperfect, solution to a longstanding problem surrounding recordings fixed before Feb. 15, 1972. The article provides a summary of the key provisions in the new act, and how they may affect the work of archivists.


Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern Mar 2019

Right On Time: First Possession In Property And Intellectual Property, Dotan Oliar, James Y. Stern

Faculty Publications

How should we allocate property rights in unowned tangible and intangible resources? This Article develops a model of original acquisition that draws together common law doctrines of first possession with original acquisition doctrines in patent, copyright, and trademark law. The common denominator is time: in each context, doctrine involves a trade-off between assigning entitlements to resources earlier or later in the process of their development and use. Early awards risk granting exclusivity to parties who may not be capable of putting resources to their best use. Late awards prolong contests for ownership, which may generate waste or discourage acquisition efforts ...