Law Commons^™

Scholarly Journals And The Open Access Conundrum, Colin B. Sakumoto

Colin B Sakumoto

This paper examines the desirability and feasibility of open access scholarly journals with particular emphasis on the parties shaping the production of these journals. In examining how the current publishing model will shape the implementation of open access publishing, analysis of the obstacles likely to hinder implementation is given in depth. Finally, a number of measures are suggested to help build the momentum needed to one day realize a widespread open access publishing model.

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 …

"Fit For Purpose:" Why The European Union Should Not Extend The Term Of Related Rights Protection In Europe, Susanna Monseau

Susanna Monseau

This paper argues that the European Union should not, as it currently proposes, extend the term of protection for sound recordings in Europe. It compares the U.K. government’s current policy that the scope and length of copyright protection for sound recordings should not be extended, with that of the European Union which, encouraged by the French government particularly, has recently proposed an extension from the 50 year term to a 95-year term of copyright protection for sound recordings. It analyzes several major independent reviews of the evidence on extending copyright protection for sound recordings, including the findings and recommendations of …

The Harry Potter Lexicon And The World Of Fandom: Fan Fiction, Outsider Works, And Copyright, Aaron Schwabach

Aaron Schwabach

Fan fiction, long a nearly invisible form of outsider art, has grown exponentially in volume and legal importance in the past decade. Because of its nature, authorship, and underground status, fan fiction stands at an intersection of issues of property, sexuality, and gender. This article examines three disputes over fan writings, concluding with the recent dispute between J.K. Rowling and Steven Vander Ark over the Harry Potter Lexicon, which Rowling once praised and more recently succeeded in suppressing. The article builds on and adds to the emerging body of scholarship on fan fiction, concluding that much fan fiction is fair …

Copyright And The Fashion Industry, Victoria R. Watkins

Victoria R Watkins

This paper seeks to discuss the relationship, or lack there of, between copyrights and the fashion industry. Although fashion designs are works of authorship, and comply with originality requirements of § 102 of the Copyright Act, the structure and nature of the industry do not compel the need for this protection, enabling it to run efficiently without it. In order to prove the stated claim, the article will examine the history of the industry, case law, other scholarly writings and current trends in the market.

Testing The Over- And Under-Exploitation Hypotheses: Bestselling Musical Compositions (1913-32) And Their Use In Cinema (1968-2007), Paul J. Heald

Paul J. Heald

Some economists assert that as valuable works transition from copyrighted status and fall into the public domain they will be underexploited and their value dissipated. Others insist instead that without an owner to control their use, valuable public domain works will be overexploited or otherwise debased. This study of the most valuable musical compositions from 1913-32 demonstrates that neither hypothesis is true as it applies to the exploitation of songs in movies from 1968-2007. When compositions fall into the public domain, they are just as likely to be exploited in movies, suggesting no under-exploitation. And the rate of exploitation of …

Grokster, Bittorrent, Copyright Infringement, And Inducement: How Modus Operandi Can Provide A Functional Standard For Future File-Sharing Cases, Jamie Gregorian

Jamie Gregorian

In 2005, the Supreme Court issued its landmark ruling in MGM Studios Inc. v. Grokster, Ltd. In that ruling, the Court created the inducement standard, a new avenue by which artists could pursue claims against file-sharing companies that were facilitating the infringement of their intellectual property. Under the inducement standard, the act of inducing another to infringe copyright is now sufficient to confer secondary liability. As file-sharing outfits continue to learn from previous judicial decisions and tailor their infringement-facilitating software so as to avoid legal liability, the criminal law concept of modus operandi may prove beneficial to courts in deciding …

Guns And Speech Technologies: How The Right To Bear Arms Affects Copyright Regulations Of Speech Technologies, Edward Lee

Edward Lee

This Essay examines the possible effect the Supreme Court’s landmark Second Amendment ruling in District of Columbia v. Heller will have on future cases brought under the Free Press Clause. Based on the text and history of the Constitution, the connection between the two Clauses is undeniable, as the Heller Court itself repeatedly suggested. Only two provisions in the entire Constitution protect individual rights to a technology: the Second Amendment’s right to bear “arms” and the Free Press Clause’s right to the freedom of the “press,” meaning the printing press. Both rights were viewed, moreover, as preexisting, natural rights to …

Copyright Infringement In The Internet Age - Primetime For Harmonized Conflict-Of-Laws Rules?, Anita B. Frohlich

Anita B Frohlich

The traditionally national nature of law endangers its very raison d’être in today’s interconnected and borderless world. Conflict-of-laws methodology may prove to represent an adequate means to maintain relevance of national legal tradition in presence of the increasingly international nature of legal disputes. Here, I propose that only a harmonized conflict-of-laws framework can achieve this goal. Specifically, I focus on international copyright law since (1) the current national jurisprudence in this field is unsatisfactory and disparate, (2) international intellectual property law has so far mostly failed to cross-fertilize with the field of conflict of laws, and (3) there have been …

Pirates Among The Second Life Islands – Why You Should Monitor The Misuse Of Your Intellectual Property In Online Virtual Worlds, Ben Quarmby

Ben Quarmby

Virtual online worlds such as Second Life – a world in which users can live, work and purchase virtual goods, services and real estate – have enjoyed a well-documented explosion in popularity. Their success, however, has not come without some degree of turbulence. Relying on the example of Second Life, this article will address one of the primary sources of concern to arise in connection with these worlds: the dramatic escalation in trademark and copyright violations in virtual world and its impact on real-world individuals or business entities. Given that users have the ability to design and create virtual property …

Copyright And Fair Use In The New Digital Age, Jonathan R. Medina

Jonathan R Medina

This paper concerns aspects of intellectual property law in the new digital age and how Fair Use should be modified to include some user-generated content. However, users should be cautious of copyright concerns of creators and respect those rights, using their works in context.

Restricting Fair Use To Save The News: A Proposed Change In Copyright Law To Bring More Profit To News Reporting, Ryan T. Holte

Prof. Ryan T. Holte

This article deals with the current state of the news industry and the rapidly declining number of national newspapers. It examines the present condition of the media, the effect the Internet has had on the news business, and the economic and public policies behind protecting news. The paper then discusses the current means of protecting information, through copyright and misappropriation law, before proposing a change in the Copyright Act to better allow the news industry to reap profits from top-caliber news reporting.

Ceo Postings: Leveraging The Internet’S Communications Potential While Managing The Message To Maintain Corporate Governance Interests In Information Security, Reputation And Compliance, Margo E. K. Reder

Margo E. K. Reder

CEO POSTINGS –

LEVERAGING THE INTERNET’S COMMUNICATIONS POTENTIAL WHILE MANAGING THE MESSAGE TO MAINTAIN CORPORATE GOVERNANCE INTERESTS IN INFORMATION SECURITY, REPUTATION AND COMPLIANCE

By Margo E. K. Reder

For approximately eight years, Whole Foods Market, Inc. [Whole Foods] CEO John Mackey posted messages to Yahoo! Financial’s online message board for Whole Foods. Rather than using his real name, Mr. Mackey like many posters to chat rooms, created an online alter ego and posted his comments under a pseudonym. As “Rahodeb” Mr. Mackey promoted his Whole Foods chain, boasted about personal stock gains in Whole Foods stock, company plans and performance …

Property, Persona, Permission, Deven R. Desai

Deven R. Desai

Information overload confronts us everyday. In such a situation, attention is scarce and the ability to focus attention has value. In short, the explosion of information means we live in an attention economy. As theorist Richard Lanham has posited, the key assets in the attention economy (e.g. writings, images) are part of the cultural conversation which leads to and elevates the importance of intellectual property because intellectual property is the way our society manages such assets. Put differently, authors now have two interests: the copyrighted work and the reputation that travels with that creation as it enhances the author’s ability …

Toward An Alternative Normative Framework For Copyright: From Private Property To Human Rights, Mary Wong

Mary Wong

As a species of intellectual property, copyrightable works are assumed to be a form of private property, for which exclusive rights are conferred and which may be assigned, licensed and transferred as property. This article questions this fundamental assumption, in terms of both its consequences on rights of access and use by non-owners, and its limitations on the ability of copyright law to accommodate broader socio-cultural norms and values embodying wider notions of creativity and development. It argues that, for copyright law to more fully reflect these norms and values, a more flexible framework is required. Although attempts have been …

Toward An Alternative Normative Framework For Copyright: From Private Property To Human Rights, Mary Wong

Mary Wong

As a species of intellectual property, copyrightable works are assumed to be a form of private property, for which exclusive rights are conferred and which may be assigned, licensed and transferred as property. This article questions this fundamental assumption, in terms of both its consequences on rights of access and use by non-owners, and its limitations on the ability of copyright law to accommodate broader socio-cultural norms and values embodying wider notions of creativity and development. It argues that, for copyright law to more fully reflect these norms and values, a more flexible framework is required. Although attempts have been …

The Pope's Copyright? Aligning Incentives With Reality By Using Creative Motivation To Shape Copyright Protection, Lydia P. Loren

Lydia P Loren

In the United States utilitarian theory posits that granting an exclusive right in creative expression will provide a necessary incentive to invest in the creation and distribution of expressive works. It is feared that without this incentive there would be insufficient motivation for creation. Indeed, it appears that the U.S. adheres completely to the notion that “no man but a blockhead ever wrote, except for money.” Yet the creation of many works, such as email and papel decrees, ordinarily are not motivated by monetary incentives. Nevertheless, current copyright protection fails to account for the creator’s motivation in determining the level …

Google Booksearch And Library Digitization, Laura Quilter, Jack Lerner

Laura Quilter

No abstract provided.

Creativity And Copyright, Dennis S. Karjala

Dennis S Karjala

Nearly everyone, from layperson to professional, thinks of copyright as the primary mode of legal protection for the intellectual fruits of creative artists and authors. While necessarily conceding that copyright has been extended in recent decades to cover a large number of highly mundane works, most scholars still see authorial “creativity” as the one element common to the vast array of works that now fall under the copyright umbrella. In the United States, this view has purportedly been elevated to constitutional status with the Supreme Court’s 1991 decision in Feist v. Rural Telephone Service, which stated in dictum that creativity …

Drm E Abuso Di Posizione Dominante: Il Caso Itunes, Giuseppe Mazziotti

giuseppe mazziotti

No abstract provided.

Complying With The National Institutes Of Health Public Access Policy: Copyright Considerations And Options, Michael W. Carroll

Michael W. Carroll

This White Paper is written primarily for policymaking staff in universities and other institutional recipients of NIH support responsible for ensuring compliance with the Public Access Policy. The January 11, 2008, Public Access Policy imposes two new compliance mandates. First, the grantee must ensure proper manuscript submission. The version of the article to be submitted is the final version over which the author has control, which must include all revisions made after peer review. The statutory command directs that the manuscript be submitted to PMC “upon acceptance for publication.” That is, the author’s final manuscript should be submitted to PMC …

Scale-Free Law: Network Science And Copyright, Andres Guadamuz

Andres Guadamuz

Networks are everywhere. The staggering complexity and seemingly chaotic nature of everyday life is actually a collection of different networks interacting with us from the moment that we wake up to the time we go to sleep. We are constantly surrounded by the social network, the financial network, the transport network, the telecommunications network, and even the network within our own bodies. The understanding of how these systems operate and interact with one another has been the realm of physicists, economists, biologists and mathematicians. Until recently, the study of networks lacked empirical application because it was extremely difficult to gather …

The Penumbral Public Domain: Constitutional Limits On Quasi-Copyright Legislation, Aaron K. Perzanowski

Aaron K. Perzanowski

This Article attempts to reconcile the breadth of the modern Commerce Clause with the notion of meaningful and enforceable limits on Congress' copyright authority under Article I, Section 8, Clause 8. The Article aims to achieve two objectives. First, it seeks to outline a general approach to identifying and resolving inter-clause conflicts, sketching a methodology that has been lacking in the courts' sparse treatment of such conflicts. Second, it applies that general framework to the copyright power in order to outline the scope of constitutional prohibitions against quasi-copyright protections. In particular, this application focuses on the federal anti-bootlegging statutes and …

Le Domaine Public, Garant De L'Intérêt Général En Propriété Intellectuelle ?, Severine Dusollier

Severine Dusollier

No abstract provided.

Billowing White Goo, Jessica Litman

Jessica Litman

In this paper, written for a symposium on “Fair Use: Incredibly Expanding or Extraordinarily Shrinking?,” I argue that the size of the fair use footprint has remained about the same over the past three decades, while the size and scope of copyright’s exclusive rights have expanded markedly. In order to protect a broader range of worthy uses under the fair use umbrella, courts have adopted new tests tailored to privilege particular sorts of uses, but in doing so they haven’t expanded fair use so much as they have moved it around. In part I of the paper, I briefly summarize …

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 …

An Intentional View Of The Copyright Work, Justine Pila

Justine Pila

The questions at the heart of copyright – what is a work, and the extent of copyright protection – are considered. Arguments are presented firstly for an understanding of works oriented around expressive intent, and secondly for a statutory test of infringement that pays closer attention to issues of policy and the authorial acts that copyright rewards. The article revisits two central cases of modern English copyright law, Walter v Lane and Interlego v Tyco Industries, and suggests that their reasoning is problematic; Walter v Lane because the transcripts of Lord Rosebery's speeches were not books for copyright purposes, and …

Compilation Copyright: A Matter Calling For ‘A Certain ... Sobriety’, Justine Pila

Justine Pila

In this article I review the UK and Australian law of compilation copyright in the light particularly of the Australian Full Federal Court's decisions in Desktop Marketing Systems (2002) and IceTV (2008). I criticize the Court's approach in those cases to the issues of both subsistence and infringement, while also offering a measured defense of the first instance decision in IceTV. In particular, I suggest that decision is largely right, and reflects an important attempt by a Judge to reorient copyright around its works, and resist the past temptation of courts - including the Full Federal Court itself - to …

Of Maps, Crown Copyright, Research And The Environment, Estelle Derclaye

Estelle Derclaye

No abstract provided.

Flashing Badge Co Ltd V Groves: A Step Forward In The Clarification Of The Copyright/Design Interface, Estelle Derclaye

Estelle Derclaye

No abstract provided.