Law Commons^™

Improper Appropriation, Daniel J. Gervais

Daniel J Gervais

The traditional (Arnstein) test for copyright infringement is satisfied when the owner of a valid copyright establishes unauthorized copying by the defendant. To demonstrate unauthorized copying, one of the major tests is that the plaintiff must first show that her work was actually copied; second, she must establish substantial similarity and/or that the copying amounts to an improper or unlawful appropriation. The second prong is satisfied when (i) protected expression in the earlier work was copied and (ii) the amount of the copyrighted work that is copied must be more than de minimis. This Article examines, first, how impropriety has …

Exploring The Interfaces Between Big Data And Intellectual Property Law, Daniel J. Gervais

Daniel J Gervais

This article reviews the application of several IP rights (copyright, patent, sui generis database right, data exclusivity and trade secret) to Big Data. Beyond the protection of software used to collect and process Big Data corpora, copyright’s traditional role is challenged by the relatively unstructured nature of the non-relational (noSQL) databases typical of Big Data corpora. This also impacts the application of the EU sui generis right in databases. Misappropriation (tort-based) or anti-parasitic behaviour protection might apply, where available, to data generated by AI systems that has high but short-lived value. Copyright in material contained in Big Data corpora must …

Blockchain And Smart Contracts: The Missing Link In Copyright Licensing?, Balazs Bodo, Daniel Gervais, Joao Pedro Quintais

Daniel J Gervais

Cloud Control: Copyright, Global Memes And Privacy, Daniel J. Gervais, Daniel J. Hyndman

Daniel J Gervais

This paper examines the shift from the Internet connection paradigm to an amalgamation paradigm. Ultimately, almost all personal and commercial content will be stored or backed up in the computing Cloud. This is likely to change the way in which copyright is enforced and users' privacy is protected.

The Tangled Web Of Ugc: Making Copyright Sense Of User-Generated Content, Daniel J. Gervais

Daniel J Gervais

Even as a mere conceptual cloud, the term “user-generated content” is useful to discuss the societal shifts in content creation brought about by the participative Web and perhaps best epitomized by the remix phenomenon. This Essay considers the copyright aspects of UGC. On the one hand, the production of UGC may involve both the right of reproduction and the right of adaptation—the right to prepare derivative works. On the other hand, defenses against claims of infringement of these rights typically rely on (transformative) fair use or the fact that an insubstantial amount (such as a quote) of the preexisting work …

A Uniquely Canadian Institution: The Copyright Board Of Canada, Daniel J. Gervais

Daniel J Gervais

Several countries have fostered the growth of Collective Management Organizations (CMOs) through legislative initiatives in the belief that CMOs offer a viable solution to the problems associated with individual licensing, collecting royalties and enforcing copyright against large numbers of users. In theory, collective licensing enables creators to exercise rights in a fair, efficient and accessible manner. It ensures copyright protection when individual management of it becomes difficult or impracticable. However, collective management is not a panacea, and questions have been raised about the efficiency and the transparency of CMOs and their continued relevancy in the digital age. This Chapter attempts …

Intellectual Property And Human Rights: Learning To Live Together, Daniel J. Gervais

Daniel J Gervais

Intellectual property and human rights must learn to live together. Traditionally, there have been two dominant views of this “cohabitation,” namely a conflict view, which emphasizes the negative impacts of intellectual property on rights such as freedom of expression or the right to health and security, and a compatibility model, which emphasizes that both sets of rights strive towards the same fundamental equilibrium. This Chapter takes the dualist view that both are right, though there is, and should be, much more truth to the second approach in the coming years.

The Price Of Social Norms: Towards A Liability Regime For File-Sharing, Daniel J. Gervais

Daniel J Gervais

he paper starts by asking whether P2P file-sharing of music can be stopped. Based on a discussion of (a) the interaction among law (regulation), technology and the market and (b) relevant social norms, the paper takes the view that it may not be possible to stop file-sharing. This paper then turns to an analysis of the economics and structure of a viable licensing model that could be implemented now without legislative or technological changes. The paper argues that P2P licensing could be good business. The paper ends with a brief look at (a) whether the licensing model could be exported …

Feist Goes Global: A Comparative Analysis Of The Notion Of Originality In Copyright Law, Daniel J. Gervais

Daniel J Gervais

he 1991 U.S. Supreme Court decision in Feist Publications v. Rural Telephone Service Company, Inc. delivered was hailed both as a landmark decision and a legal bomb. Was Feist so original as to deserve all the attention? After all, it did not establish a new originality paradigm as such but only ended a long division among federal circuits concerning the protection under copyright of factual compilations. A number of circuits had adopted a test similar to the one articulated in Feist (i.e., based on creative selection), while others required only evidence of labor, a test known as sweat of the …

Copyright, E-Commerce And The World Wide Web, Daniel J. Gervais

Daniel J Gervais

This early (2001) piece on the impact of the online environment on the significance and enforcement of copyright is now available online. It begins by defining concepts that were new at the time, such as Digital Rights Management (DRM) and Electronic Copyright management Systems (ECMS), and the changes in business models, both those already taking place and those that could be expected to happen. It then explores the notions of negative and positive licensing and makes the point, which future events would seem to bear out, that both right holders and users do better when right holders focus on maximizing …