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Full-Text Articles in Law

Unwinding Sony, Peter S. Menell, David Nimmer Dec 2017

Unwinding Sony, Peter S. Menell, David Nimmer

Peter Menell

No abstract provided.


Panel Ii: The Death Or Rebirth Of The Copyright?, Hugh C. Hansen, Diane Zimmerman, Robert Kasunic, Brett Frischmann Sep 2017

Panel Ii: The Death Or Rebirth Of The Copyright?, Hugh C. Hansen, Diane Zimmerman, Robert Kasunic, Brett Frischmann

Brett Frischmann

No abstract provided.


El Copyright Del Juez ¿Y Si Demostramos Que El Derecho De Autor Puede Mejorar -En Cierto Sentido- La Justicia?, Javier André Murillo Chávez Jun 2017

El Copyright Del Juez ¿Y Si Demostramos Que El Derecho De Autor Puede Mejorar -En Cierto Sentido- La Justicia?, Javier André Murillo Chávez

Javier André Murillo Chávez

MURILLO Chávez, Javier André - "El Copyright del Juez ¿Y si demostramos que el Derecho de Autor puede mejorar -en cierto sentido- la Justicia?". En: Revista La Propiedad Inmaterial. N° 23. Bogotá: Universidad Externado de Colombia, 2017, pp. 69-129.


Equitable Resale Royalties, Brian L. Frye Jun 2017

Equitable Resale Royalties, Brian L. Frye

Brian L. Frye

A “resale royalty right” or droit de suite(resale right) is a legal right that gives certain artists the right to claim a percentage of the resale price of the artworks they created. The Berne Convention for the Protection of Literary and Artistic Works and the Tunis Model Law on Copyright for Developing Countries provide for an optional resale royalty right. Many countries have created a resale royalty right, although the particulars of the right differ from country to country. But the United States has repeatedly declined to create a federal resale royalty right, and a federal court recently held ...


An Empirical Study Of The Copyright Practices Of American Law Journals, Brian L. Frye, Franklin L. Runge, Christopher J. Ryan Jr. Jun 2017

An Empirical Study Of The Copyright Practices Of American Law Journals, Brian L. Frye, Franklin L. Runge, Christopher J. Ryan Jr.

Brian L. Frye

This article presents an empirical study of the copyright practices of American law journals in relation to copyright ownership and fair use, based on a 24-question survey. It concludes that many American law journals have adopted copyright policies that are inconsistent with the expectations of legal scholars and the scope of copyright protection. Specifically, many law journals have adopted copyright policies that effectively preclude open-access publishing, and unnecessarily limit the fair use of copyrighted works. In addition, it appears that some law journals may not understand their own copyright policies. This article proposes the creation of a Code of Copyright ...


Incidental Intellectual Property, Brian L. Frye Jun 2017

Incidental Intellectual Property, Brian L. Frye

Brian L. Frye

As Mark Twain apocryphally observed, “History doesn’t repeat itself, but it often rhymes.” The history of the right of publicity reflects a common intellectual property rhyme. Much like copyright, the right of publicity is an incidental intellectual property right that emerged out of regulation. Over time, the property right gradually detached itself from the regulation and evolved into an independent legal doctrine.

Copyright emerged from the efforts of the Stationers’ Company to preserve its members’ monopoly on the publication of works of authorship. Similarly, it can be argued the right of publicity emerged from the efforts of bubblegum companies ...


An Empirical Study Of The Copyright Practices Of American Law Journals, Brian L. Frye, Franklin L. Runge, Christopher J. Ryan Jr. Jun 2017

An Empirical Study Of The Copyright Practices Of American Law Journals, Brian L. Frye, Franklin L. Runge, Christopher J. Ryan Jr.

Franklin L. Runge

This article presents an empirical study of the copyright practices of American law journals in relation to copyright ownership and fair use, based on a 24-question survey. It concludes that many American law journals have adopted copyright policies that are inconsistent with the expectations of legal scholars and the scope of copyright protection. Specifically, many law journals have adopted copyright policies that effectively preclude open-access publishing, and unnecessarily limit the fair use of copyrighted works. In addition, it appears that some law journals may not understand their own copyright policies. This article proposes the creation of a Code of Copyright ...


The Trans Pacific Partnership: Copyright Law, The Creative Industries And Internet Freedom, Matthew Rimmer Apr 2017

The Trans Pacific Partnership: Copyright Law, The Creative Industries And Internet Freedom, Matthew Rimmer

Matthew Rimmer

Professor Matthew Rimmer discusses the Trans-Pacific Partnership Agreement (TPP) as part of IP Osgoode Speaks series. This ‘blockbuster agreement’—supposedly a jovial landmark in the sphere of diplomatic international relations—was diluted with a mixture of uncertainty and secrecy. According to Prof. Rimmer, the TPP is a controversial agreement for several reasons. First, many concerns were raised regarding the involvement of major companies, via special advisory groups and executives, in drafting parts of the agreement. Consequently, the companies allegedly had more influence over the TPP than the legislators since the latter could not review the agreement that was protected (and ...


Control Or Promote? China's Cultural Censorship System And Its Influence On Copyright Protection, Tianxiang He Mar 2017

Control Or Promote? China's Cultural Censorship System And Its Influence On Copyright Protection, Tianxiang He

Tianxiang HE

China is famous for its strict censorship system regarding cultural goods. China is not, of course, the only country which advocates censorship, but its uniqueness lies in the political purposes that its censorship system serves. This article explores China's censorship system in the cultural sector in detail. It examines the ex ante and ex post censorship system in three major areas – publications, traditional broadcasting channels and online publishing – as well as the interplay between related legislations, regulations and national enforcement campaigns. This article explains how China uses these legal instruments and utilizes enforcement campaigns to strategically live up to ...


Fair Use And Appropriation Art, Niels Schaumann Mar 2017

Fair Use And Appropriation Art, Niels Schaumann

Niels Schaumann

Part I provides some background regarding aesthetic vocabulary in the arts, and traces the use of appropriated images in the twentieth- and twenty-first centuries. Part II discusses the general application of copyright law to appropriation art. Part III examines the current status of the fair use cases that address appropriation art and concludes that the fair use results are better than before, largely because of the ascendancy of “transformativeness” as an important fair use factor. It also concludes, however, that fair use remains insufficient to protect appropriation art. Finally, Part IV re-proposes a solution—an exception to copyright, limited to ...


A Data Commons For Food Security, Jeremiah Baarbé, Meghan Blom, Jeremy De Beer Dec 2016

A Data Commons For Food Security, Jeremiah Baarbé, Meghan Blom, Jeremy De Beer

Jeremy de Beer

We propose a ‘data commons’, formed through a licensing model that allows farmers to benefit from the datasets to which they contribute. Agricultural data is globally recognized for its importance in addressing food insecurity. This data is generated and used by a value chain of contributors, collectors, and consumers. Our licensing model addresses the crisis caused by a lack of data ownership rights for contributor farmers. Using the IAD framework we consider five case studies. These studies explore how John Deere, Plantwise, and Abalobi license data collection and how Creative Commons and the Open Data Commons license data distribution. Supported ...


Click Here To Agree- Managing Intellectual Property When Crowdsourcing Solutions, Jeremy De Beer, Ian Mccarthy, Adam Soliman, Emily Treen Dec 2016

Click Here To Agree- Managing Intellectual Property When Crowdsourcing Solutions, Jeremy De Beer, Ian Mccarthy, Adam Soliman, Emily Treen

Jeremy de Beer

Tapping into the creativity of a crowd can provide a highly efficient and effective means of acquiring ideas, work, and content to solve problems. But crowdsourcing solutions can also come with risks, including the legal risks associated with intellectual property. Therefore, we raise and address a two-part question: Why — and how — should organizations deal with intellectual property issues when engaging in the crowdsourcing of solutions? The answers lie in understanding the approaches for acquiring sufficient intellectual property from a crowd and limiting the risks of using that intellectual property. Herein, we discuss the hazards of not considering these legal issues ...


Making Copyright Markets Work For Creators, Consumers And The Public Interest, Jeremy De Beer Dec 2016

Making Copyright Markets Work For Creators, Consumers And The Public Interest, Jeremy De Beer

Jeremy de Beer

Copyright is an important part of marketplace framework policies that
support creative industries. Copyright is also increasingly relevant to
broader economic and industrial policy. Market-oriented justifications
for copyright, therefore, factor heavily in debates about copyright law
and policy reform. In this context, discourse often revolves around
copyright as a property right, which underpins market transactions.

This chapter endorses market-oriented approaches towards copyright
as a means to promote creators’ interests, consumers’ interests, and
the public interest. The conception of copyright as a property right
is consistent with the basis of general policymaking in free market
economies. Two caveats are, however, important ...


Statute Of Anne: Today And Tomorrow, Marshall Leaffer, Peter Jaszi, Craig Joyce, Tyler Ochoa Nov 2016

Statute Of Anne: Today And Tomorrow, Marshall Leaffer, Peter Jaszi, Craig Joyce, Tyler Ochoa

Peter Jaszi

No abstract provided.


Code Of Best Practices In Fair Use For The Visual Arts, Patricia Aufderheide, Peter Jaszi Nov 2016

Code Of Best Practices In Fair Use For The Visual Arts, Patricia Aufderheide, Peter Jaszi

Peter Jaszi

The mission of the College Art Association (CAA) is to promote the visual arts and their understanding through advocacy, intellectual engagement, and a commitment to the diversity of practices and practitioners. CAA contributes to the visual arts profession as a whole through scholarly publications, advocacy, exchange of research and new work, and the development of standards and guidelines that reflect the best practices of the field. The Code of Best Practices in Fair Use for the Visual Arts is based on a consensus of professionals in the visual arts who use copyrighted images, texts, and other materials in their creative ...


A Realist Approach To Copyright Law's Formalities, Michael W. Carroll Nov 2016

A Realist Approach To Copyright Law's Formalities, Michael W. Carroll

Michael W. Carroll

Rejecting the conventional story that formalities in copyright law were abolished by the Berne Convention, this Article demonstrates that privately administered systems of formalities play a significant role in the administration of copyright law worldwide. Indeed, they must because copyright is designed to support a transaction structure which requires rightsholders who seek to attract licensing partners to go through some formal step to identify themselves and the works in which they have a legal or beneficial interest. Canvassing the landscape of mandatory and voluntary public and private systems of formalities, this article argues that: (1) national policymakers retain more policy ...


Disruptive Technology And Common Law Lawmaking: A Brief Analysis Of A&M Records, Inc. V. Napster, Inc., Michael W. Carroll Nov 2016

Disruptive Technology And Common Law Lawmaking: A Brief Analysis Of A&M Records, Inc. V. Napster, Inc., Michael W. Carroll

Michael W. Carroll

This symposium Article analyzes the Ninth Circuit's decision in A&M Records, Inc. v. Napster, Inc. After setting the stage with a comparison to the rise of cable television, and a description of the technologies underpinning Napster's service, the Article analyzes the doctrinal developments in the Ninth Circuit's opinion. The principal analytical points are that: (1) the court's definitions of "sampling" and "space-shifting" were overbroad, leading to oversimple fair use analysis; (2) the court's treatment of vicarious liablility for copyright infringement is doctrinally incoherent because it suggests that liability depends on whether a third party has "turn[ed] a blind eye" toward infringement or has exercised its supervisory power over the infringer to the "fullest extent"; and (3) the court's choice to sidestep analysis of the "service provider" safe harbors in Section 512 of the Copyright Act should have been better explained but was understandable given the state of the record.


Why Full Open Access Matters, Michael W. Carroll Nov 2016

Why Full Open Access Matters, Michael W. Carroll

Michael W. Carroll

This Perspective argues that when authors or funders pay the full cost of publishing a scientific or scholarly journal article in an open access journal, the terms of reuse should require only attribution to some combination of the author(s), the original publisher, and the funder. Publications that charge authors and their financial backers the full cost of publication and then add other reuse restrictions are not fully open access publications.


One Size Does Not Fit All: A Framework For Tailoring Intellectual Property Rights, Michael W. Carroll Nov 2016

One Size Does Not Fit All: A Framework For Tailoring Intellectual Property Rights, Michael W. Carroll

Michael W. Carroll

The United States and its trading partners have adopted cultural and innovation policies under which the government grants one-size-fits-all patents and copyrights to inventors and authors. On a global basis, the reasons for doing so vary, but in the United States granting intellectual property rights has been justified as the principal means of promoting innovation and cultural progress. Until recently, however, few have questioned the wisdom of using such blunt policy instruments to promote progress in a wide range of industries in which the economics of innovation varies considerably.

Provisionally accepting the assumptions of the traditional economic case for intellectual ...


Brief Of Amicus Curiae Academic Authors And Legal Scholars In Support Of Defendants Appellees And Affirmance, Nos. 12-14676-Ff, 12-15147-Ff (April 25, 2013), David R. Hansen, Peter A. Jazsi, Pamela Samuelson, Jason Schultz, Rebecca Tushnet Oct 2016

Brief Of Amicus Curiae Academic Authors And Legal Scholars In Support Of Defendants Appellees And Affirmance, Nos. 12-14676-Ff, 12-15147-Ff (April 25, 2013), David R. Hansen, Peter A. Jazsi, Pamela Samuelson, Jason Schultz, Rebecca Tushnet

David R Hansen

No abstract provided.


Digital Exhaustion: North American Observations, Ariel Katz Sep 2016

Digital Exhaustion: North American Observations, Ariel Katz

Ariel Katz

Rumor has it that the first-sale doctrine is dying. According to the rumor, the doctrine, forged in the era of the physical copy, will lose its prominence in the brave new world where works in digital formats are no longer distributed and enjoyed as particular identifiable objects but exist merely as data flows. Some (e.g., librarians, consumer advocates) mourn the loss of their beloved doctrine with trepidation, while others (e.g., publishers) rejoice at its anticipated demise. Both camps assume that the doctrine is confined to the transfer of tangible copies and that it limits only copyright owners’ distribution ...


El Derecho De Autor En Los Tiempos De Grau. Reflexión Sobre El Régimen De La Obra Póstuma, El Derecho Conexo Sobre Obras Inéditas En Dominio Público Y La Aplicación De La Norma En El Tiempo En El Derecho De Autor Peruano, Javier André Murillo Chávez Sep 2016

El Derecho De Autor En Los Tiempos De Grau. Reflexión Sobre El Régimen De La Obra Póstuma, El Derecho Conexo Sobre Obras Inéditas En Dominio Público Y La Aplicación De La Norma En El Tiempo En El Derecho De Autor Peruano, Javier André Murillo Chávez

Javier André Murillo Chávez

No abstract provided.


Post-Kirtsaeng, 'Material Differences' Between Copyright And Trademark Law's Treatment Of Gray Goods Persist, Charles E. Colman Aug 2016

Post-Kirtsaeng, 'Material Differences' Between Copyright And Trademark Law's Treatment Of Gray Goods Persist, Charles E. Colman

Charles Colman

The U.S. Supreme Court’s recent ruling in Kirtsaeng v. John Wiley & Sons would seem no trivial event for stakeholders in content-reliant industries. The upshot of the Court’s decision — that the Copyright Act cannot be used to prevent the unauthorized importation of copies of works, even if manufactured abroad, whose “first sale” has already occurred — will, at least initially, throw a wrench into many companies’ existing business models.

As one would expect, commentary on the decision has been extensive. With few exceptions, however, commentators attempting to predict the impact of Kirtsaeng have not looked beyond copyright law to ...


The Mythical Beginnings Of Intellectual Property, Jessica M. Silbey Jul 2016

The Mythical Beginnings Of Intellectual Property, Jessica M. Silbey

Jessica Silbey

It has become commonplace to justify intellectual property protection with homage to utilitarianism (maximizing the incentive to create, invent or produce quality goods) or natural rights (people should own the product of their creative, inventive or commercial labor). Despite the on-going dominance of these theories, there remains a dissatisfying lack of a comprehensive explanation for the value of intellectual property protection. This is in part because the economic analysis of law tends to undervalue the humanistic element of intellectual property. This Article aims to fill that void. It offers a new explanation for intellectual property rooted in narrative theory. Whereas ...


The Mythical Beginnings Of Intellectual Property, Jessica M. Silbey Jul 2016

The Mythical Beginnings Of Intellectual Property, Jessica M. Silbey

Jessica Silbey

It has become commonplace to justify intellectual property protection with homage to utilitarianism (maximizing the incentive to create, invent or produce quality goods) or natural rights (people should own the product of their creative, inventive or commercial labor). Despite the on-going dominance of these theories, there remains a dissatisfying lack of a comprehensive explanation for the value of intellectual property protection. This is in part because the economic analysis of law tends to undervalue the humanistic element of intellectual property. This Article aims to fill that void. It offers a new explanation for intellectual property rooted in narrative theory. Whereas ...


The Canadian Public Domain: What, Where, And To What End?, Carys J. Craig Jul 2016

The Canadian Public Domain: What, Where, And To What End?, Carys J. Craig

Carys Craig

This essay explores the important body of scholarship that has emerged on the substance, nature, and role of the public domain in intellectual property law. I offer some concrete definitions of the public domain in the copyright context, identify some ongoing sources of debate in the literature, and highlight some particularly significant voices in public domain discourse. In doing so, my aim is twofold: first, I mean to present a reasonably comprehensive but concise review of the academic public domain movement, which has been directed towards substantiating and politicizing the concept of the public domain, second, I hope to re-situate ...


Out Of Tune: Why Copyright Law Needs Music Lessons, Carys Craig Jul 2016

Out Of Tune: Why Copyright Law Needs Music Lessons, Carys Craig

Carys Craig

This chapter offers a critical analysis of copyright law that integrates insights from music. The authors argue that the unique qualities of musical works magnify the mismatch between creative practices and copyright doctrine, and suggest that an interdisciplinary analysis can shine a revealing light on both the problem and potential paths to improvement. Beginning with an overview of copyright doctrine in Canada in respect of musical works and music infringement claims, the authors then borrow analytical concepts from the discipline of music theory to problematize copyright’s “reasonable listener” test for determining substantial copying. Using a specially-designed musical composition, the ...


¿Es Eficiente El Dominio Público Pagante Argentino? Una Aproximación Desde El Análisis Económico Del Derecho., Maximiliano Marzetti Jun 2016

¿Es Eficiente El Dominio Público Pagante Argentino? Una Aproximación Desde El Análisis Económico Del Derecho., Maximiliano Marzetti

Maximiliano Marzetti

En un artículo de la Dra. Lipszyc (Lipszyc, 2014) se describen las supuestas bondades del sistema de dominio público pagante (DPP) argentino y se hace un llamado a su exportación a otros países. Respetuosamente no estoy de acuerdo con mi ilustre colega. Aquí presento las razones de mi disentimiento y esbozo una aproximación que pretende ser científica al raro caso del dominio público pagante argentino.
Publicado en el Suplemento Propiedad Industrial e Intelectual - Sección Doctrina, EL DIAL, Buenos Aires, 28 de junio de 2016.


Copyright Treatment Of Freelance Work In The Digital Era, Giuseppina D'Agostino Jun 2016

Copyright Treatment Of Freelance Work In The Digital Era, Giuseppina D'Agostino

Giuseppina D'Agostino

No abstract provided.


Pre-Imagining The Copyright Board, Ariel Katz May 2016

Pre-Imagining The Copyright Board, Ariel Katz

Ariel Katz

On May 25, 2016, ALAI Canada organized a conference titled "The Copyright Board of Canada: Which Way Ahead?" In this presentation, I described how the Copyright Board seems to lack a clear understanding of its mandate and a supporting theory of regulation. Since different regulatory goals require or justify different regulatory means and institutions, articulated a clear mandate should be a first step for evaluating the Board's function and for considering potential reforms.