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Articles 1 - 30 of 104
Full-Text Articles in Law
Patent Political Economy - Indian Lessons On Pharmaceutical Patent, Julien L. Chaisse, Samira Guennif
Patent Political Economy - Indian Lessons On Pharmaceutical Patent, Julien L. Chaisse, Samira Guennif
ExpressO
The Intellectual Property Rights (IPR) regime adopted by any country is essentially a tool that strives to ensure both the growth of the domestic pharmaceutical industry and people’s access to medicines. But, contrary to the very easily advanced theory, there is no paradox between the two. From this perspective, the Indian experience has shown that it is precisely the relaxation of its national IPR regime that promoted the growth of its domestic industry, thereby ensuring a better patient access to medicines. However, the globalisation process does not overlook any sector, which means that medicines too are submitted to the new …
The Economics Of Open Access Law Publishing, Jessica Litman
The Economics Of Open Access Law Publishing, Jessica Litman
Jessica Litman
The conventional model of scholarly publishing uses the copyright system as a lever to induce commercial publishers and printers to disseminate the results of scholarly research. The role of copyright in the dissemination of scholarly research is in many ways curious, since neither authors nor the entities who compensate them for their authorship are motivated by the incentives supplied by the copyright system. Rather, copyright is a bribe to entice professional publishers and printers to reproduce and distribute scholarly works. As technology has spawned new methods of restricting access to works, and copyright law has enhanced copyright owners’ rights to …
Creative Commons As Conversational Copyright, Michael W. Carroll
Creative Commons As Conversational Copyright, Michael W. Carroll
Michael W. Carroll
Copyright law's default settings inhibit sharing and adaptation of creative works even though new digital technologies greatly enhance individuals' capacity to engage in creative conversation. Creative Commons licenses enable a form of conversational copyright through which creators share their works, primarily over the Internet, while asserting some limitation on user's right with respect to works in the licensed commons. More specifically, this chapter explains the problems in copyright law to which Creative Commons licenses respond, the methods chosen, and why the machine-readable and public aspects of the licenses are specific examples of a more general phenomenon in digital copyright law …
Are Browse-Wrap Agreements All They Are Wrapped Up To Be? , Ian A. Rambarran
Are Browse-Wrap Agreements All They Are Wrapped Up To Be? , Ian A. Rambarran
ExpressO
Electronic agreements continue to fortify their presence in the digital commercial marketplace. Whether used to sell goods or services, or simply to define relationships, standardized electronic agreements have appeared in abundance in business-to-business or business-to-consumer transactions. Standardized electronic agreements, like their physical counterparts, offer the ability to address multiple concerns in a simple, efficient fashion. Although electronic contracts and electronic signatures have been accepted and promoted by federal and state governments, many fundamental aspects of contract law have been left for the courts to wrestle with when disputes arise.
Today, there are essentially two types of standardized electronic agreements—the click-through …
Finding Common Ground In The World Of Electronic Contracts: The Consistency Of Legal Reasoning In Clickwrap Cases, Robert L. Dickens
Finding Common Ground In The World Of Electronic Contracts: The Consistency Of Legal Reasoning In Clickwrap Cases, Robert L. Dickens
ExpressO
Electronic contractual arrangements have raised complex legal issues unprecedented in the law. Technology s impact on traditional contract law doctrines is readily apparent in the dilemmas generated by recent developments in computer software, hardware, and Internet transactions. In such transactions, sellers have increasingly begun utilizing “clickwrap” agreements, whereby standard terms and conditions are displayed on the computer screen when the user attempts to access the seller’s services. Not surprisingly, the enforceability of clickwrap terms, which are often not known to the user until after payment, has become a subject of much debate in the courts. Because many of the clickwrap …
The Procompetitive Interest In Intellectual Property Law, Thomas F. Cotter
The Procompetitive Interest In Intellectual Property Law, Thomas F. Cotter
William & Mary Law Review
When government recognizes intellectual property (IP) rights, it is often viewed as sanctioning the existence of private "monopolies," in contrast to the general antimonopoly thrust of the antitrust laws. And yet, on occasion IP law itself condemns conduct on the part of IP owners-or excuses otherwise infringing activity on the part of IP defendants-expressly for the purpose of promoting competition. It does so even though antitrust law -if one were to apply it at all under analogous circumstances-would not find anticompetitive harm without conducting a more thorough analysis of whether the antitrust defendant possesses power over a well-defined market. Salient …
Fixing Fair Use, Michael W. Carroll
Fixing Fair Use, Michael W. Carroll
Working Paper Series
The fair use doctrine in copyright law balances expressive freedoms by permitting one to use another’s copyrighted expression under certain circumstances. The doctrine’s extreme context-sensitivity renders it of little value to those who require reasonable ex ante certainty about the legality of a proposed use. In this Article, Professor Carroll advances a legislative proposal to create a Fair Use Board in the U.S. Copyright Office that would have power to declare a proposed use of another’s copyrighted work to be a fair use. Like a private letter ruling from the IRS or a “no action” letter from the SEC, a …
The Measure Of The Doubt: Dissent, Indeterminacy, And Interpretation At The Federal Circuit, Jeffrey A. Lefstin
The Measure Of The Doubt: Dissent, Indeterminacy, And Interpretation At The Federal Circuit, Jeffrey A. Lefstin
ExpressO
The law of patent claim interpretation articulated by the United States Court of Appeals for the Federal Circuit is commonly supposed to be markedly indeterminate, and to be responsible for a lack of certainty and predictability in patent infringement litigation. But there has been no attempt to measure objectively the indeterminacy associated with patent claim interpretation, or, for that matter, of any other field of law. This Article shows that under appropriate conditions the indeterminacy of a legal regime may be measured empirically by the frequency of judicial dissents. Application of this method to the Federal Circuit's jurisprudence demonstrates that …
A Complete Property Right Amendment, John H. Ryskamp
A Complete Property Right Amendment, John H. Ryskamp
ExpressO
The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.
Through The Looking Glass: Runaway Productions And "Hollywood Economics", Adrian H. Mcdonald
Through The Looking Glass: Runaway Productions And "Hollywood Economics", Adrian H. Mcdonald
ExpressO
This paper uses the issue of runaway production as a looking glass into the complex world of Hollywood economics and politics. As such, a broad overview of Hollywood's business practices, history, and technology are discussed so the reader can understand how runaway production (a major issue itself) is one piece of the Hollywood puzzle. Specifically, this paper attempts to study runaway productions from the Law and Economics approach described in Judge Richard Posner's text on the subject. Events in 2006 illustrate the continuing importance of runaway productions and CEIDR's August 2006 report is discussed in this paper.
Recently expanded, this …
Digital Media & Intellectual Property: Management Of Rights And Consumer Protection In A Comparative Analysis, Nicola Lucchi
Digital Media & Intellectual Property: Management Of Rights And Consumer Protection In A Comparative Analysis, Nicola Lucchi
Nicola Lucchi
Digital Media & Intellectual Property is a comparative research that analyzes the legal and tecnological emerging issues in the Intellectual Property Rights arena. The book provides a comparative and comprehensive analysis of the current technical, commercial and economical development in digital media. It describes the impact of new business and distribution models, the current legal and regulatory framework, social practices and consumer expectations associated with the use, distribution, and control of digital media products. In particular, the author analyzes the anti-circumvention provisions for technological protection measures and digital rights management systems enacted in the United States and in Europe, and …
Copyright's Empire: Why The Law Matters , Alina Ng
Copyright's Empire: Why The Law Matters , Alina Ng
ExpressO
Two separate and distinct movements have colonized research in the field of intellectual property. Law and economics has deepened our understanding of the justification for granting monopoly rights over intellectual property. In recent years, economic theories have been used to support the growth of the commons – the free environment, where intellectual property plays little role in generating new creative works and innovation. The second movement is law and technology that has sought to increase understanding of intellectual property through the exploration of how technologies either provide freedoms or impose limitations to how creative works and innovation are created and …
The Trademark Function Of Authorship, Greg Lastowka
The Trademark Function Of Authorship, Greg Lastowka
ExpressO
The use of authorial marks in relation to the sale of creative works, like the use of business trademarks in relation to the sale of goods and services, creates social benefits that deserve legal protection. Authorial attribution acts as an incentive to authorial production, provides valuable information to consumers, and provides additional social benefits that go beyond issues of market efficiency. However, the use of authorial marks, like the use of trademarks, can create social harms. Just as counterfeiters place illegitimate trademarks on goods, exploiters of entertainment markets may be tempted to misattribute authorship. In the United States, such deceptive …
Overcoming The Achilles Heel Of Copyright Law, Haochen Sun
Overcoming The Achilles Heel Of Copyright Law, Haochen Sun
ExpressO
With the recent proliferation of international, regional and bilateral treaties associated with copyright protection, the three-step test has been hailed as the panacea for measuring the legality of all limitations on copyright. This article challenges the legitimacy of the three-step test as a one-size-fits-all standard for copyright protection and puts forward a proposal to reshape this test. It further argues that the inquiry into the legitimacy of the three-step test necessitates a careful reexamination of the conventional wisdom of copyright law in general and the nature of copyright limitations in particular. Central to this scrutiny are the inquiries into how …
Article 17 And The Scope Of Trademark Protection Afforded Under The Trips Agreement, Katja G. Weckstroem
Article 17 And The Scope Of Trademark Protection Afforded Under The Trips Agreement, Katja G. Weckstroem
ExpressO
The protection of trademarks, when it raises a conflict with the protection of geographical indications is one of the most contested issues on the international trade and intellectual property arena. In European Communities - Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs a WTO panel was faced with this issue. The panel report gives some insight into what international trademark law mandates as well as some pointers on how conflicts between different IP rights should be solved. This article attempts a deeper analysis of the coexistence of rights in the framework of the TRIPS Agreement that will …
Information Privacy As A Function Of Facial Recognition Technology And Wearable Computers, Woodrow Barfield
Information Privacy As A Function Of Facial Recognition Technology And Wearable Computers, Woodrow Barfield
ExpressO
As technological advances are made in the design of smart sensors, the issue of privacy in public places, first discussed by Warren and Brandeis in 1890, becomes an important topic for law and policy. This paper examines issues of privacy that are impacted when an individual’s image is recorded by a video-based wearable computer, analyzed using facial recognition software, and uploaded to the internet. While the Constitutional basis of search and seizure law for individual’s placed under video surveillance is reviewed, a particular focus of the paper is on a less investigated but emerging area of concern, the video recording …
Is The Eli Lilly Written Description Requirement A Paper Tiger?: A Comprehensive Assessment Of The Impact Of Eli Lilly And Its Progeny In The Courts And Pto, Christopher M. Holman
Is The Eli Lilly Written Description Requirement A Paper Tiger?: A Comprehensive Assessment Of The Impact Of Eli Lilly And Its Progeny In The Courts And Pto, Christopher M. Holman
ExpressO
In University of California v. Eli Lilly, decided by the Federal Circuit in 1997, the court established for the first time a new form of patent law’s written description requirement, apparently targeted specifically at biotechnology. To this day, the conventional wisdom is that the so-called Lilly written description requirement (“LWD”) exists as a biotechnology-specific “super-enablement” requirement, substantially more stringent than the enablement requirement (the conventional standard for patentability), and standing as an impediment to effective patent protection for biotechnology inventions. My objective in writing this article was to test this conventional wisdom, by conducting a comprehensive search for all LWD …
Nominative Fair Use In Trademark Law: Revisited Online, But Was The Ninth Circuit's Analysis Invoked For The Lasttime?, Jeff Leung
ExpressO
No abstract provided.
Power Or Prudence: Which Is It?, Lisa A. Dolak
Power Or Prudence: Which Is It?, Lisa A. Dolak
ExpressO
In limiting patent litigants’ access to the declaratory judgment remedy, the U.S. Court of Appeals for the Federal Circuit has primarily invoked the “actual controversy” requirement imposed by the U.S. Constitution and the federal Declaratory Judgment Act. However, an examination of Federal Circuit decisions and those of the district courts reveals that the courts have often confused, or blurred the distinction between, constitutional requirements and the discretion the Act affords the federal courts to decline to exercise jurisdiction. Specifically, the courts often attribute constitutional significance to factors that instead bear on policy.
It is important to distinguish between jurisdictional limits …
Scientific Expertise In Policymaking: The Case For Open Review And Patent Reform, Beth Simone Noveck
Scientific Expertise In Policymaking: The Case For Open Review And Patent Reform, Beth Simone Noveck
ExpressO
The Energy Research Advisory Board, the group of external scientific advisors that provided impartial expert advice to the Secretary of Energy since 1978, was disbanded this May. The Administration, like its predecessors, regularly replaces experts on agency advisory panels with ideologues and political allies. We are at the nadir of a historical progression since World War II away from trust in and use of scientific expertise in policymaking. This shift however, has not been countered with greater public participation. Instead, administrative law and theory have developed a model of the managerial administrative authority. The "expertocratic" agency relies on internal expertise …
The (Boundedly) Rational Basis Of Trademark Liability: Reconciling The Federal Trademark Dilution Act And The Lanham Act, Jeremy Sheff
The (Boundedly) Rational Basis Of Trademark Liability: Reconciling The Federal Trademark Dilution Act And The Lanham Act, Jeremy Sheff
ExpressO
The confusion that has accompanied the effort to graft a dilution remedy onto federal trademark law has sown deep uncertainty about the remedy's proper scope and purpose. This confusion is an outgrowth of the peculiar history of dilution theory in the development of trademark law, and the resulting tension between uniqueness-based theories of dilution and theories based on free-riding concerns. This Article takes the position that the current conceptual framework for trademark liability is misguided. By focusing its analysis on consumer beliefs about the relationship between a mark and a manufacturer, current trademark doctrine is ignoring a far more persuasive …
Access To Knowledge As A Bridge Over The Troubled Waters Of Copyright Fair Use -- From Jefferson To Mandela To Google, Douglas L. Rogers
Access To Knowledge As A Bridge Over The Troubled Waters Of Copyright Fair Use -- From Jefferson To Mandela To Google, Douglas L. Rogers
ExpressO
The copyright fair use doctrine is a key to increasing access to knowledge and decreasing the digital divide between information-rich and information-poor countries. Publishers have sued Google for copyright infringement for scanning the copyrighted books of the publishers into a digital database, so Google users can search the database for certain words to determine what books contain words of interest to the user. The Google litigation, however, is only a small piece of the larger access to knowledge puzzle. The larger issue is access to the books themselves, translated into the native languages of citizens of developing countries. Yet copyright …
Contribution To The Understanding Of The Public Domain, Vincenzo Vinciguerra
Contribution To The Understanding Of The Public Domain, Vincenzo Vinciguerra
ExpressO
The purpose of this article is to understand how the public domain has been construed by the Courts. In the first part of the article, the different ways the public domain has been qualified and construed by scholars are briefly sketched out- for descriptive and introductory purposes to the analyzed cases law. In light of the different ways the public domain has been qualified and characterized by scholars, in the second part of the article, several well-known and often-quoted cases law are analyzed. In this article, it is argued that the public domain, contrary to authoritative schools of thought, is …
Saving Trade Secret Disclosures On The Internet Through Sequential Preservation, Elizabeth A. Rowe
Saving Trade Secret Disclosures On The Internet Through Sequential Preservation, Elizabeth A. Rowe
ExpressO
When a trade secret is stolen from its owner and posted on the Internet, the default rule is that it becomes a free for all. By virtue of the fact that it has been posted, it becomes public, and consequently loses its trade secret protection. The ensuing result is that independent third parties, including competitors, are entitled to use it, and the trade secret owner, despite years of laudable efforts to maintain the secret, suffers a fatal loss at the hands of a wrongdoer. The apparent injustice in that conclusion does not go unnoticed.
Given that trade secret law is …
A Battle Between Geography Indication And Trademark, Jia Xu
A Battle Between Geography Indication And Trademark, Jia Xu
Cornell Law School J.D. Student Research Papers
In 2005, Administration for Quality, Supervision, Inspection and Quarantine (AQSIQ) issued “Administrative Regulation on Indications of Original Source and Regulation on Protection of Products from Original Sources,” but “Implementing Rules of the Trademark Law of the People's Republic of China” has included the protection of Geography Indication into the trademark law. The two separate tracks of protection of GI have caused much confusion to the intellectual property right holders regarding their property rights. This thesis introduces and compares the concept of trademark and geography indications, analyzes the current protection mode both in China and abroad and discusses how to eliminate …
Applying General Tort Law To The Indirect Infringement Of Patents, Copyrights, And Trademarks, Charles W. Adams
Applying General Tort Law To The Indirect Infringement Of Patents, Copyrights, And Trademarks, Charles W. Adams
ExpressO
This article examines the general tort law governing liability for torts committed by others and compares it to the law of indirect infringement for patents, copyrights, and trademarks. There are a number of circumstances in which the law imposes liability for torts committed by other persons. Liability is imposed on an aider and abettor who gives substantial assistance or encouragement to another person’s commission of a tort, provided the aider and abettor actually knows the other person’s conduct is tortious. Liability is also imposed on a party who induces another person to commit a tort if the inducer either knows …
On The Legal Consequence Of Sauces: Should Thomas Keller's Recipes Be Per Se Copyrightable, Christopher J. Buccafusco
On The Legal Consequence Of Sauces: Should Thomas Keller's Recipes Be Per Se Copyrightable, Christopher J. Buccafusco
ExpressO
This article is devoted to copyright protection for one of the restaurant industry’s most valuable assets – original recipes. The two most recent appellate courts to consider the issue have been hostile to the notion that recipes are copyrightable, but given the enormous amount of money at stake, litigation in this area is likely about to expand. The article begins by critiquing the courts’ conclusions. Following an analogy to musical composition, I argue that recipes are simply the means of fixation for culinary works of authorship, i.e, dishes. Next, based on interviews with some of America’s leading chefs, including Thomas …
Lawful Personal Use, Jessica D. Litman
Lawful Personal Use, Jessica D. Litman
Law & Economics Working Papers Archive: 2003-2009
Whenever someone makes a copy of a copyrighted work, that copy is either authorized by the copyright owner, permitted by some express provision of the copyright statute (such as the ephemeral copy provision in section 112 or the fair use provision in section 107), or infringing. That's what we tell our colleagues and what we teach our students. But most of us don't actually believe it, and this article argues that that understanding of the copyright law is wrong.
I make this argument by examining the copyright law through the lens of personal use. Unlike many other jurisdictions, the United …
Law And The Science Of Networks: An Overview And An Application To The "Patent Explosion", Katherine J. Strandburg
Law And The Science Of Networks: An Overview And An Application To The "Patent Explosion", Katherine J. Strandburg
ExpressO
The network may be the metaphor of the present era. A network, consisting of “nodes” and “links,” may be a group of individuals linked by friendship; a group of computers linked by network cables; a system of roads or airline flights -- or another of a virtually limitless variety of systems of connected “things.” The past few years have seen an explosion of interest in “network science,” which seeks to move beyond metaphor to analysis in fields from physics to sociology. Network science highlights the role of relationship patterns in determining collective behavior. It underscores and begins to address the …
Patent Reform And Differential Impact, Matthew J. Sag, Kurt Rohde
Patent Reform And Differential Impact, Matthew J. Sag, Kurt Rohde
ExpressO
This article presents a new method of analyzing patent reform proposals through the use of differential impact analysis.
Congressional efforts to address the crisis of confidence in the U.S. patent system have failed up to the present day. If Congress is to have any hope of passing much needed legislative reform to the Patent Act, the supporters of patent reform will have to unite behind a streamlined set of proposals that directly address the most pressing and unambiguous defects of the current patent system. To that end, we have proposed applying a test of differential impact to enable Congress to …