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2010

Intellectual property

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Articles 1 - 30 of 135

Full-Text Articles in Law

Die Institutionalisierung Von Wissensbeständen In Österreich. Die Diskrepanz Zwischen Wirtschaftlicher Realität Und Politik (The Institutionalization Of Knowledge In Austria: Coming To Grips Between Economic Reality & Policy), Roya Ghafele Apr 2013

Die Institutionalisierung Von Wissensbeständen In Österreich. Die Diskrepanz Zwischen Wirtschaftlicher Realität Und Politik (The Institutionalization Of Knowledge In Austria: Coming To Grips Between Economic Reality & Policy), Roya Ghafele

Roya Ghafele

The University Act 2002 redefines ownership structures over intellectual property in Austria, thus paving the way for enhanced knowledge transfer and knowledge commercialization from public research institutions. This study discusses the various featers of the different models of generating and leveraging knowledge. It does so, by explaining the characteristics of technology markets and assesses the strengths and weaknesses of proprietary versus open knowledge generation from a perspective of new institutional economics. Particular emphasis is being put on the preservation of the public interest, deemed particularly important in the context of publicly funded research. The paper concludes by offering a rough ...


Accounting For Intellectual Property?, Roya Ghafele Apr 2013

Accounting For Intellectual Property?, Roya Ghafele

Roya Ghafele

Accounting constitutes a very specific form of language, which is highly standardized, mathematical in nature and seeks to uniformly and systematically describe events while avoiding expressions of individual creativity or explicit political positions. In this sense, accounting is a social, cultural and historical artefact rather than a natural or technical phenomenon and can therefore be viewed as the decisive instrument to create and maintain imagined business communities. On the balance sheet, IP experiences a specific form of authorization. It is represented in the discourse of accounting by ‘intangibles’, an imprecise term associated with the increasingly observed ‘gap between the market ...


Real-Life Protection For Fictional Trademarks, Benjamin M. Arrow Dec 2010

Real-Life Protection For Fictional Trademarks, Benjamin M. Arrow

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.


Copyright For Engineered Dna: An Idea Whose Time Has Come?, Christopher Holman Nov 2010

Copyright For Engineered Dna: An Idea Whose Time Has Come?, Christopher Holman

Christopher M Holman

The rapidly emerging field of synthetic biology has tremendous potential to address some of the most compelling challenges facing our planet, by providing clean renewable energy, nutritionally-enhanced and environmentally friendly agricultural products, and revolutionary new life-saving cures. However, leaders in the synthetic biology movement have voiced concern that biotechnology's current patent-centric approach to intellectual property is in many ways ill-suited to meet the challenge of synthetic biology, threatening to impede follow-on innovation and open access technology. For years, copyright and patent protection for computer software have existed side-by-side, the two forms of intellectual property complementing one another. Numerous academic ...


The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh Nov 2010

The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh

Faculty Scholarship

‘Common law intellectual property’ refers to a set of judge-made legal regimes that create exclusionary entitlements in different kinds of intangibles. Principally the creation of courts, many of these regimes are older than their statutory counterparts and continue to co-exist with them. Surprisingly though, intellectual property scholarship has paid scant attention to the nuanced law-making mechanisms and techniques that these regimes employ to navigate through several of intellectual property law’s substantive and structural problems. Common law intellectual property regimes employ a process of rule development that this Article calls ‘pragmatic incrementalism’. It involves the use of pragmatic and minimalist ...


Everything Is Connected, Kembrew Mcleod Oct 2010

Everything Is Connected, Kembrew Mcleod

Kembrew McLeod

The article discusses U.S. copyright law and the copyright clearance system, focusing on the author's documentary film "Copyright Criminals," which aired on Public Broadcasting System (PBS). It explores sampling and collage in audiovisual media, commenting on use of the practice by hip-hop group Public Enemy. Other topics include the Washington, D.C. Center for Social Media, intellectual property, and fair use. The author also examines his book "Freedom of Expression®: Resistance and Repression in the Age of Intellectual Property" and a prank in which he successfully copyrighted the phrase "Freedom of Expression"


Copyright And The First Amendment: Comrades, Combatants Or Uneasy Allies?, Joseph P. Bauer Oct 2010

Copyright And The First Amendment: Comrades, Combatants Or Uneasy Allies?, Joseph P. Bauer

Joseph P. Bauer

The copyright regime and the First Amendment seek to promote the same goals. Both seek the creation and dissemination of more, better and more diverse literary, pictorial, musical and other works. But, they use significantly different means to achieve those goals. The copyright laws afford to the creator of a work the exclusive right to reproduce, distribute, transform and perform that work for a extended period of time. The First Amendment, on the other hand, proclaims that Congress “shall make no law ... abridging the freedom of speech or of the press,” thus at least nominally indicating that limitations on the ...


Social Semiotics In The Fair Use Analysis, H Brian Holland Oct 2010

Social Semiotics In The Fair Use Analysis, H Brian Holland

H Brian Holland

Social Semiotics in the Fair Use Analysis

34,314 words

3,809 footnotes (Bluebook formatted)

This article presents an alternate theory of fair use, employing social semiotics as a process theory of meaning-making to frame the transformativeness inquiry. It is an argument for an expansion of fair use based not on theories of authorship or rights of autonomy, but rather a theory of the audience linked to social practice. The article asks, in essence, whether audiences determine the meaning, purpose, function, or social benefit of an allegedly infringing work, often regardless of what the work’s creator did or intended ...


Social Semiotics In The Fair Use Analysis, H Brian Holland Oct 2010

Social Semiotics In The Fair Use Analysis, H Brian Holland

H Brian Holland

Social Semiotics in the Fair Use Analysis

34,314 words (including 380 footnotes)

This article presents an alternate theory of fair use, employing social semiotics as a process theory of meaning-making to frame the transformativeness inquiry. It is an argument for an expansion of fair use based not on theories of authorship or rights of autonomy, but rather a theory of the audience linked to social practice. The article asks, in essence, whether audiences determine the meaning, purpose, function, or social benefit of an allegedly infringing work, often regardless of what the work’s creator did or intended. If so ...


The Ninth Circuit Lands A "Perfect 10" Applying Copyright Law To The Internet, Robert A. Mcfarlane Oct 2010

The Ninth Circuit Lands A "Perfect 10" Applying Copyright Law To The Internet, Robert A. Mcfarlane

Golden Gate University Law Review

The Ninth Circuit Court of Appeals issued three landmark decisions in 2007 that addressed how copyright protections apply to images that can be accessed over the Internet. Internet publisher Perfect 10 initiated these lawsuits based on allegations that its registered copyrights were infringed when unauthorized copies of its photographs appeared on third-party websites where they could be viewed, downloaded, and purchased without payment to Perfect 10. This Article briefly summarizes the facts of these three cases, explains the central holdings of each decision, and then concludes with a discussion of the collective impact that the three decisions have on enforcement ...


Making Virtual Copyright Work, Matthew R. Farley Oct 2010

Making Virtual Copyright Work, Matthew R. Farley

Law Student Publications

This Article proposes measures that attempt to strike the balance between creation and access. The virtual-world community is not likely to persevere with the little copyright protection it currently enjoys. Creativity will dwindle and the rich, energetic settings that make virtual worlds so attractive to businesses and entertainers will follow suit. At the same time, because much of the creativity in virtual worlds is derivative in nature, virtual creators are also unlikely to benefit from strong copyright protections. Therefore, current interpretation of copyright law must be revisited and revised before applying it to virtual worlds. Part I details virtual worlds ...


Strategies Under Pressure: Usa-China Copyright Dispute, Dexin Tian, Chin-Chung Chao Oct 2010

Strategies Under Pressure: Usa-China Copyright Dispute, Dexin Tian, Chin-Chung Chao

Communication Faculty Publications

Purpose – The purpose of this paper is to explore the Chinese and American efforts in keeping the balance of innovation and copyright protection, with an emphasis on China’s strategies under Western, especially American pressure. The research findings are expected to enhance mutual efforts from the two countries to protect copyright and boost innovation and facilitate genuine communication between both sides in their decade-long intellectual property right (IPR) disputes.

Design/methodology/approach – For data collection, this study adopted in-depth interviews of 45 participants who were either copyright holders as publishers and authors, or ordinary consumers in China. Under the theoretical ...


Acta: Risks Of Third Party Enforcement For Access To Medicines, Brook K. Baker Oct 2010

Acta: Risks Of Third Party Enforcement For Access To Medicines, Brook K. Baker

PIJIP Research Paper Series

In its current near-final draft form, the Anti-Counterfeiting Trade Agreement [ACTA] being negotiated plurilaterally—and largely secretly—by a self-selected group of countries proposes to allow preliminary and final injunctive relief against third parties (third-party enforcement) to prevent infringement of intellectual property rights and/or to prevent infringing goods from entering into the channels of commerce. There is lingering uncertainty whether the relevant civil enforcement section will apply to the entire range of intellectual property rights or whether patents will be excluded. If patents are excluded, the dangers in ACTA would be reduced but not eliminated—new globalized forms of ...


Will Individuals Aboard The Cultural Pirate Ship Be Struck By The Acta's Cannon Ball?, Shalom Andrews Oct 2010

Will Individuals Aboard The Cultural Pirate Ship Be Struck By The Acta's Cannon Ball?, Shalom Andrews

PIJIP Research Paper Series

Combating internet piracy is a global challenge. Fundamentally, piracy lingers because it has become a culturally acceptable behaviour that is under-enforced. The Anti-Counterfeiting Trade Agreement (ACTA) is the latest enforcement measure aimed at sinking the pirate ship.

The first part of this paper will explore piracy as a cultural phenomenon and how it interacts with Australian civil and criminal law. Pirates, who have awareness that their plundering is wrong, convince themselves that: there are moral grounds for their escapades; there is a government conspiracy to reduce internet freedom; they are fighting globalisation by attacking the corporations who reap disproportionate booty ...


Equity And Efficiency In Intellectual Property Taxation, Xuan-Thao Nguyen, Jeffrey A. Maine Oct 2010

Equity And Efficiency In Intellectual Property Taxation, Xuan-Thao Nguyen, Jeffrey A. Maine

Faculty Publications

This article evaluates the Current US income tax regime governing intellectual property by focusing on the traditional principles of tax policy - tax fairness and efficiency. It highlights the shortcomings of the current tax system in fulfilling both of these tenets.


Towards A Holistic Approach To Technology And Climate Change: What Would Form Part Of An Answer?, Estelle Derclaye, Abbe Brown Sep 2010

Towards A Holistic Approach To Technology And Climate Change: What Would Form Part Of An Answer?, Estelle Derclaye, Abbe Brown

Estelle Derclaye

No abstract provided.


Intellectual Property Law - Newcombe V. Adolf Coors Co., Nairi Chakalian Sep 2010

Intellectual Property Law - Newcombe V. Adolf Coors Co., Nairi Chakalian

Golden Gate University Law Review

In Newcombe v. Adolf Coors Co., the United States Court of Appeals for the Ninth Circuit held that a Major League baseball pitcher, retired for over thirty years, had valid publicity infringement claims against defendants who created an advertisement using a drawing of his stance. According to the court, a material factual issue existed as to whether the drawing of the stance in the advertisement conjured up images of the pitcher, even though the pitcher's face could not be identified from the drawing, and his name did not appear anywhere in the advertisement. Thus, the court found a subtle ...


Intellectual Property Law - Kendall-Jackson Winery V. E. & J. Gallo Winery, Rema M. Titcomb Sep 2010

Intellectual Property Law - Kendall-Jackson Winery V. E. & J. Gallo Winery, Rema M. Titcomb

Golden Gate University Law Review

In Kendall-Jackson v. Gallo,l the United States Court of Appeals for the Ninth Circuit held that grape leaf designs on wine bottles are not protected as trademarks under the Lanham Trademark Act because of widespread use in the industry. Accordingly, the Ninth Circuit upheld the district court's decision to grant Gallo's summary judgment motion in favor of Gallo.


Intellectual Property Law - Dreamwerks Production Group, Inc. V. Skg Studio, Thomas J. Murphy Sep 2010

Intellectual Property Law - Dreamwerks Production Group, Inc. V. Skg Studio, Thomas J. Murphy

Golden Gate University Law Review

In Dreamwerks Production Group, Inc. v. SKG Studio the United States Court of Appeals for the Ninth Circuit evaluated whether the trademarks "Dreamwerks" and "Dream Works" were likely to confuse the reasonable consumer. Traditionally, a well-known, senior trademark user will sue a lesser-known, junior trademark user in order to protect its goodwill and prevent customer confusion. In Dreamwerks, however, the parties' positions were reversed, with the lesser-known, senior user, Dreamwerks Production Group, suing the better-known, yet junior user, SKG Studio. The Ninth Circuit held that, like every other new company, SKG Studio was required to select a name that would ...


Intellectual Property Law - Blockbuster Videos Inc. V. City Of Tempe, Mary L. Shapiro Sep 2010

Intellectual Property Law - Blockbuster Videos Inc. V. City Of Tempe, Mary L. Shapiro

Golden Gate University Law Review

In a matter of first impression, the United Sates Court of Appeals for the Ninth Circuit, in Blockbuster Videos, Inc. v. City of Tempe, considered whether section 1121(b) of the Lanham Act preempts a municipality's authority to require the alteration of a federally registered trademark. Based on the plain language of the statute, the court held that a local entity may not require the alteration of a trademark to enforce a zoning ordinance, though it may prohibit the display of the trademark.


Copyright Protection In Factual Compilations: Feist Publications V. Rural Telephone Service Company "Altruism Expressed In Copyright Law", Sherrie Callis Sep 2010

Copyright Protection In Factual Compilations: Feist Publications V. Rural Telephone Service Company "Altruism Expressed In Copyright Law", Sherrie Callis

Golden Gate University Law Review

In the wake of Feist, copyright practitioners are scrambling to determine what it all means, and how best to protect their client's intellectual property rights and interests. While different views are presented, an expression of dismay is common. This note will address the question: are the copyright practitioners justified in their concern? Part I will outline the Constitutional underpinnings of copyright protection. More specifically, this Part will discuss the two theories underlying the case law in the circuit courts of appeal, including a discussion of their legal philosophies. Part II will examine the Court's decision in Feist. Part ...


From Facts To Form: Extension And Application Of The Feist "Practical Inevitability" Test And Creativity Standard, Joseph P. Hart Sep 2010

From Facts To Form: Extension And Application Of The Feist "Practical Inevitability" Test And Creativity Standard, Joseph P. Hart

Golden Gate University Law Review

This Note will analyze the results of extending the "practical inevitability" test and creativity standard in the holding of Feist Publications, Inc. v. Rural Telephone Service Co. from works involving the compilation of facts to other works including computer programs, sculpture, signs, fabric patterns and chinaware patterns. It will also discuss the Copyright Office's review of copyright applications for functional objects. The Note will continue with an analysis of the ramifications of the policy of judicial deference to the Register of Copyright's decision on creativity when reviewing a copyright denial. It will conclude with a discussion of the ...


Security Interests In Intellectual Property: Recent Developments, Douglas C. Maclellan Sep 2010

Security Interests In Intellectual Property: Recent Developments, Douglas C. Maclellan

Golden Gate University Law Review

This Note will examine the parameters of conflict in light of some recent cases addressing security interests in copyright, patent, and trademark. Part I will review the purpose and substance of the filing provisions of Article Nine. Part II will examine the scope of Article Nine's authority, particularly where it conflicts with the federal recordation provisions. Part III will analyze several recent cases to determine the present extent of Article Nine's authority. Part IV will discuss the need to reform the federal statutes to clarify the rights of parties in secured transactions in intellectual property.


In Re Dillon: Prima Facie Obviousness Of Chemical Claims, Gregory L. Bradley Sep 2010

In Re Dillon: Prima Facie Obviousness Of Chemical Claims, Gregory L. Bradley

Golden Gate University Law Review

After reviewing the facts of the Dillon case, this paper will illustrate, by analysis of prior caselaw, that Dillon has not revived the Hass-Henze doctrine of structural obviousness. Rather, Dillon will be revealed as having molded many years of sometimes inconsistent precedent into a coherent standard for prima facie obviousness. Subsequently, the legitimacy of the Dillon standard with respect to chemical compound, composition and process claims will be considered. Finally, the effect of Dillon on patent prosecution costs, and other policy considerations, will be discussed.


Protecting Innovation In Computer Software, Biotechnology, And Nanotechnology, Dennis Karjala Sep 2010

Protecting Innovation In Computer Software, Biotechnology, And Nanotechnology, Dennis Karjala

Dennis S Karjala

In the 1970=s, paying virtually no attention to the fundamental distinction between patent and copyright subject matter, Congress decided to protect computer programs as a Aliterary work@ under copyright law. As a result, a work of technology for the first time was consciously placed under the protective umbrella of a statute designed for art, music, and literature. While the vulnerability of computer program code to cheap and easy verbatim copying supplied a policy basis for Aanti-copy@ protection of code, courts often analogized these congressionally anointed Aliterary works@ to broadly protected novels and plays rather than thinly protected technical specifications ...


Flouting The Elmo Necessity And Denying The Local Roots Of Interpretation: "Anthropology's" Quarrel With Acta And Authoritarian Ip Regimes, Alexander S. Dent Sep 2010

Flouting The Elmo Necessity And Denying The Local Roots Of Interpretation: "Anthropology's" Quarrel With Acta And Authoritarian Ip Regimes, Alexander S. Dent

PIJIP Research Paper Series

This paper uses an anthropological definition of culture to examine the intensification of intellectual property policing, coupled with an expansion of its definition. These are ACTA’s aims. I argue that acts of sharing lie at the root of communication; humans must share in order to learn. Furthermore, symbols change their meaning as they circulate in different cultural contexts. Therefore, in denying the fundamental importance of sharing and local interpretation, ACTA will not only fail spectacularly as a policy document. It will also fuel a “war” on file-sharers, users of generic medicines, and manufacturers, sellers, and buyers of imitative goods ...


Welfare Implications Of Intellectual Property Enforcement Measures, Xavier Seuba, Joan Rovira, Sophie Bloemen Sep 2010

Welfare Implications Of Intellectual Property Enforcement Measures, Xavier Seuba, Joan Rovira, Sophie Bloemen

PIJIP Research Paper Series

The enforcement of intellectual property rights is often presented as a neutral legal phenomenon aimed at ensuring compliance, or giving effect or force to a law. Enforcement of intellectual property rights has gained increasing international attention and legal strength. More and more, existing international substantive standards are being supplemented with secondary norms, which in principle deal with the fulfillment of the former. However, the value placed on these secondary norms and intellectual property enforcement initiatives contrasts with little knowledge or understanding of their implications for resources and overall welfare. Moreover, the aforementioned neutrality recedes when it becomes apparent that some ...


Public Interest Representation In Global Ip Policy Institutions, Jeremy Malcolm Sep 2010

Public Interest Representation In Global Ip Policy Institutions, Jeremy Malcolm

PIJIP Research Paper Series

This paper compares the institutional and procedural arrangements that a range of global institutions make for civil society representation and input into policy development processes on intellectual property issues. The context for this analysis comes from two sets of norms for multi-stakeholder public policy development that exist in other regimes of governance: those of the Aarhus Convention (for environmental matters), and those of the Tunis Agenda for the Information Society (for Internet governance). These global norms, along with the actual practices of the institutions involved in global governance of intellectual property rights, are then contrasted with the proposed new institutional ...


Heart Pills Are Red, Viagra Is Blue… When Does Pill Color Become Functional? An Analysis Of Utilitarian And Aesthetic Functionality And Their Unintended Side Effects In The Pharmaceutical Industry, Signe H. Naeve Aug 2010

Heart Pills Are Red, Viagra Is Blue… When Does Pill Color Become Functional? An Analysis Of Utilitarian And Aesthetic Functionality And Their Unintended Side Effects In The Pharmaceutical Industry, Signe H. Naeve

Signe H. Naeve

Abstract: As consumers we often associate pill color and shape with particular medications. Should that trade dress be protected beyond the expiration of the patent? Legal scholars have recognized some of the tensions and inconsistencies in court opinions when it comes to trade dress protection for pill shape and color. This article focuses on the specific tensions between requiring secondary meaning and non-functionality, as well as the potential of “genericide” when generic pharmaceuticals enter the market. Ultimately this article makes some novel recommendations to assess functionality at the time of FDA approval for the pharmaceutical and to have the FDA ...


Fish Or Fowl? The Nature Of Wto Dispute Resolution Under Trips, Anne Hiaring Aug 2010

Fish Or Fowl? The Nature Of Wto Dispute Resolution Under Trips, Anne Hiaring

Annual Survey of International & Comparative Law

This note discusses the procedure of dispute resolution in the World Trade Organization (WTO). The note goes on to discuss WTO disputes involving intellectual property to date and the possible impacts of the WTO dispute resolution procedures on the determination of substantive issues of intellectual property law, using dispute WS 160 involving the Fairness in Music Licensing Act, as an example. The note concludes that the same concerns about lack of due process and inability of amici to appear in the proceedings that cause concern in the environmental field are also causes of concern with respect to intellectual property rights ...