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Intellectual Property Law

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Spillovers Theory And Its Conceptual Boundaries, Brett Frischmann Sep 2017

Spillovers Theory And Its Conceptual Boundaries, Brett Frischmann

Brett Frischmann

No abstract provided.


Difficulties With The Interordinal Laws Of Cultural Property As Applied In The United States, And Proposed Solutions, Jeffrey John Miles Aug 2017

Difficulties With The Interordinal Laws Of Cultural Property As Applied In The United States, And Proposed Solutions, Jeffrey John Miles

Jeffrey John Miles

This paper seeks to sketch the contours of the interordinal web of the current laws, and delineate problem areas where the law fails to reach as well as the areas where law exists, yet remains misapplied. In doing so, I am hoping to continue the dialectic begun by Alexander Bauer in his 2008 piece, New Ways of Thinking About Cultural Property: A Critical Appraisal of the Antiquities Trade Debates as well as borrow some inspiration from the interordinal analysis applied by Gordillo in his groundbreaking recent work, Interlocking Constitutions. This is a top-down perspective, with less attention to each individual ...


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.


Stop Letting Wine Crash The Wedding: Craft Beer Consumers Are Sophisticated Buyers, Justin P. Weinberg, O. Joseph Balthazor Jr. Jan 2017

Stop Letting Wine Crash The Wedding: Craft Beer Consumers Are Sophisticated Buyers, Justin P. Weinberg, O. Joseph Balthazor Jr.

Cybaris®

No abstract provided.


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 ...


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.


What Notice Did, Jessica Litman May 2016

What Notice Did, Jessica Litman

Jessica Litman

In this article, I explore the effect of the copyright notice prerequisite on the law's treatment of copyright ownership. The notice prerequisite, as construed by the courts, encouraged the development of legal doctrines that herded the ownership of copyrights into the hands of publishers and other intermediaries, notwithstanding statutory provisions that seem to have been designed at least in part to enable authors to keep their copyrights. Because copyright law required notice, other doctrinal developments were shaped by and distorted by that requirement. The promiscuous alienability of U.S. copyrights may itself have been an accidental development deriving from ...


Intellectual Property And Related Rights In Climate Data, Michael Carroll Apr 2016

Intellectual Property And Related Rights In Climate Data, Michael Carroll

Articles in Law Reviews & Other Academic Journals

This chapter focuses on the ways in which intellectual property law can act as a barrier to data sharing. Intellectual property laws supply exclusive rights that can enable a researcher, employer or funder to ‘own’ data; they can then bring legal claims against persons who access or reuse data without permission. Some of these rights attach automatically to data, data sets, or databases, and thus must be managed properly to enable robust data sharing in climate science. Other rights are created by contract, and the policies around such privately created rights must be understood and analyzed. This chapter briefly describes ...


Intellectual Property And Related Rights In Climate Data, Michael W. Carroll Mar 2016

Intellectual Property And Related Rights In Climate Data, Michael W. Carroll

Michael W. Carroll

INTRODUCTION
Climate scientists require vast amounts of data to do their work. Viewing the Earth as
an integrated system with multiple interdependencies, climate scientists engage in
longitudinal analysis of data from sensors monitoring land, sea, and sky around the
globe to differentiate climate change from mere weather. Using ever more powerful
computing resources, climate scientists seek to integrate all of these data into complex
models that can explain, and perhaps predict, the causes and effects of climate change.
No single scientific team by itself can gather such data; instead climate scientists must
share data among themselves and persuade numerous public ...


Intellectual Property And Related Rights In Climate Data, Michael W. Carroll Mar 2016

Intellectual Property And Related Rights In Climate Data, Michael W. Carroll

Michael W. Carroll

INTRODUCTION
Climate scientists require vast amounts of data to do their work. Viewing the Earth as
an integrated system with multiple interdependencies, climate scientists engage in
longitudinal analysis of data from sensors monitoring land, sea, and sky around the
globe to differentiate climate change from mere weather. Using ever more powerful
computing resources, climate scientists seek to integrate all of these data into complex
models that can explain, and perhaps predict, the causes and effects of climate change.
No single scientific team by itself can gather such data; instead climate scientists must
share data among themselves and persuade numerous public ...


3d Printing And Healthcare: Will Laws, Lawyers, And Companies Stand In The Way Of Patient Care?, Evan R. Youngstrom Mar 2016

3d Printing And Healthcare: Will Laws, Lawyers, And Companies Stand In The Way Of Patient Care?, Evan R. Youngstrom

Evan R. Youngstrom

Today, our society is on a precipice of significant advancement in healthcare because 3D printing will usher in the next generation of medicine. The next generation will be driven by customization, which will allow doctors to replace limbs and individualize drugs. However, the next generation will be without large pharmaceutical companies and their justifications for strong intellectual property rights. However, the current patent system (which is underpinned by a social tradeoff made from property incentives) is not flexible enough to cope with 3D printing’s rapid development. Very soon, the social tradeoff will no longer benefit society, so it must ...


Intellectual Property And Related Rights In Climate Data, Michael W. Carroll Mar 2016

Intellectual Property And Related Rights In Climate Data, Michael W. Carroll

Michael W. Carroll

This chapter focuses on the ways in which intellectual property law can act as a barrier to data sharing. Intellectual property laws supply exclusive rights that can enable a researcher, employer or funder to ‘own’ data; they can then bring legal claims against persons who access or reuse data without permission. Some of these rights attach automatically to data, data sets, or databases, and thus must be managed properly to enable robust data sharing in climate science. Other rights are created by contract, and the policies around such privately created rights must be understood and analyzed. This chapter briefly describes ...


Seeing Color: Implications Of The European Union's New Common Practice For Transatlantic Trademark Registration By United States Trademark Holders, Christine Park Mar 2016

Seeing Color: Implications Of The European Union's New Common Practice For Transatlantic Trademark Registration By United States Trademark Holders, Christine Park

Seattle University Law Review

This Note explores two issues related to the EU’s new common practice: (1) whether the new common practice will deter ongoing efforts to integrate trademark registration and protection at the international level; and (2) whether U.S. trademark holders, when expanding business into the EU, should register through the Madrid Protocol and obtain Community Trade Mark or register through a country’s trademark office. This Note argues that the new trademark practice hinders international efforts for standardizing trademark registration and that U.S. trademark holders should claim color when registering their marks with the EU.


Reframing Similarity Analysis In Copyright, Kevin J. Hickey Jan 2016

Reframing Similarity Analysis In Copyright, Kevin J. Hickey

Washington University Law Review

Copyright law lacks a coherent method to determine non-literal infringement. The core inquiry, “substantial similarity,” purports to assess whether two works are so alike that an accused work infringes the original. Substantial similarity is a fundamental limit on the scope of copyright, but it is plagued by confusion and governed by a series of arcane tests that differ in each circuit. Even more troubling, courts lack a consistent method to go about comparing two works and how the comparison between two works is framed. There is no consensus, for example, on whether the original work or the accused work should ...


The Lost Precedent Of The Reverse Doctrine Of Equivalents, Samuel F. Ernst Dec 2015

The Lost Precedent Of The Reverse Doctrine Of Equivalents, Samuel F. Ernst

Samuel F Ernst

Proponents of legislative patent reform argue that the current patent system perversely impedes true innovation in the name of protecting a vast web of patented inventions, the majority of which are never even commercialized for the benefit of the public. Opponents of such legislation argue that comprehensive, prospective patent reform legislation would harm the incentive to innovate more than it would curb the vexatious practices of non-practicing entities. But while the “Innovation Act” wallows in Congress, there is a common law tool to protect innovation from the patent thicket lying right under our noses: the reverse doctrine of equivalents. Properly ...


From Bards To Search Engines: Finding What Readers Want From Ancient Times To The World Wide Web, Stephen Maurer Dec 2015

From Bards To Search Engines: Finding What Readers Want From Ancient Times To The World Wide Web, Stephen Maurer

Stephen M. Maurer

Copyright theorists often ask how incentives can be designed to create better books, movies, and art. But this is not the whole story. As the Roman satirist Martial pointed out two thousand years ago, markets routinely ignore good and even excellent works. The insight reminds us that incentives to find content are just as necessary as incentives to make it. Recent social science research explains why markets fail and how timely interventions can save deserving titles from oblivion. This article reviews society’s long struggle to fix the vagaries of search since the invention of literature. We build on this ...


Joinder Of Unrelated Infringers As Defendants In Patent Litigation Under The Jurisprudence Of The United States District Court For Eastern District Of Texas—A Critical Review, Ping-Hsun Chen Nov 2015

Joinder Of Unrelated Infringers As Defendants In Patent Litigation Under The Jurisprudence Of The United States District Court For Eastern District Of Texas—A Critical Review, Ping-Hsun Chen

Ping-Hsun Chen

On September 16, 2011, the American patent system started a new era because of the enactment of the Leahy-Smith America Invents Act (“AIA”). 35 U.S.C. § 299 was enacted to limit district court’s power to permit joinder of unrelated infringers as defendants in a single lawsuit. Before that, district courts apply Rule 20 of the Federal Civil Procedure. The Eastern District of Texas had permitted joinder only because the same patent was infringed. By introducing § 299, Congress intended to abrogate such approach. Later, the Federal Circuit in In re EMC limited the practice of Rule 20 and required ...


Joinder Of Unrelated Infringers As Defendants In Patent Litigation Under The Jurisprudence Of The United States District Court For Eastern District Of Texas—A Critical Review, Ping-Hsun Chen Nov 2015

Joinder Of Unrelated Infringers As Defendants In Patent Litigation Under The Jurisprudence Of The United States District Court For Eastern District Of Texas—A Critical Review, Ping-Hsun Chen

Ping-Hsun Chen

On September 16, 2011, the American patent system started a new era because of the enactment of the Leahy-Smith America Invents Act (“AIA”). 35 U.S.C. § 299 was enacted to limit district court’s power to permit joinder of unrelated infringers as defendants in a single lawsuit. Before that, district courts apply Rule 20 of the Federal Civil Procedure. The Eastern District of Texas had permitted joinder only because the same patent was infringed. By introducing § 299, Congress intended to abrogate such approach. Later, the Federal Circuit in In re EMC limited the practice of Rule 20 and required ...


La Leyenda De La Distintividad Adquirida, Javier André Murillo Chávez Oct 2015

La Leyenda De La Distintividad Adquirida, Javier André Murillo Chávez

Javier André Murillo Chávez

.


A Fake Right Of Priority Under The Cross-Strait Agreement On Intellectual Property Right Protection And Cooperation, Ping-Hsun Chen Oct 2015

A Fake Right Of Priority Under The Cross-Strait Agreement On Intellectual Property Right Protection And Cooperation, Ping-Hsun Chen

Ping-Hsun Chen

On June 26, 2010, Taiwan and China entered into a “Cross-Strait Agreement on Intellectual Property Rights Cooperation and Protection” (“Cross-Strait IP Agreement”). This Cross-Strait IP Agreement was renowned for China’s admission of a right of priority of Taiwanese patent applications or trademark applications. Under the TRIPS Agreement, China is obligated to admit a right of priority of Taiwanese applications, but it has never fulfilled such obligation. China’s particular concern is that a right of priority is rooted from the Paris Convention which only allows a state to join, so by admitting a right of priority of Taiwanese applications ...


Some Key Things Entrepreneurs Need To Know About The Law And Lawyers, Lawrence J. Trautman, Anthony Luppino, Malika S. Simmons Sep 2015

Some Key Things Entrepreneurs Need To Know About The Law And Lawyers, Lawrence J. Trautman, Anthony Luppino, Malika S. Simmons

Lawrence J. Trautman Sr.

New business formation is a powerful economic engine that creates jobs. Diverse legal issues are encountered as a start-up entity approaches formation, initial capitalization and fundraising, arrangements with employees and independent contractors, and relationships with other third parties. The endeavors of a typical start-up in the United States will likely implicate many of the following areas of law: intellectual property; business organizations; tax laws; employment and labor laws; securities regulation; contracts and licensing agreements; commercial sales; debtor-creditor relations; real estate law; health and safety laws/codes; permits and licenses; environmental protection; industry specific regulatory laws and approval processes; tort/personal ...


Copyrightability Of Music Compilations And Playlists: Original And Creative Works Of Authorship?, Marc Fritzsche Sep 2015

Copyrightability Of Music Compilations And Playlists: Original And Creative Works Of Authorship?, Marc Fritzsche

Marc Fritzsche

With the digitalization of music and the increasing popularity of online streaming services, people can conveniently create their own playlists and music compilations at will and share them worldwide. Imagine a world in which any selection and arrangement of songs, whether made by you, a DJ, a radio station, or a record label, is protected under the regime of Copyright Law. The result would be a vast amount of copyright infringements when a playlist or compilation gets mimicked by others. Thus far, only the High Court in London, UK, was confronted with this problem, but the parties settled, leaving the ...


Users' Patronage: The Return Of The Gift In The "Crowd Society", Giancarlo F. Frosio Sep 2015

Users' Patronage: The Return Of The Gift In The "Crowd Society", Giancarlo F. Frosio

Giancarlo Francesco Frosio

In this work, I discuss the tension between gift and market economy throughout the history of creativity. For millennia, the production of creative artifacts has lain at the intersection between gift and market economy. From the time of Pindar and Simonides – and until the Romanticism will commence a process leading to the complete commodification of creative artifacts – market exchange models run parallel to gift exchange. From Roman amicitia to the medieval and Renaissance belief that “scientia donum dei est, unde vendi non potest,” creativity has been repeatedly construed as a gift. Again, at the time of the British and French ...


Dismissing Provenance: The Use Of Procedural Defenses To Bar Claims In Nazi-Looted Art And Securitized Mortgage Litigation, Christian Bromley Aug 2015

Dismissing Provenance: The Use Of Procedural Defenses To Bar Claims In Nazi-Looted Art And Securitized Mortgage Litigation, Christian Bromley

Christian J Bromley

The litigation surrounding an estimated 650,000 works looted by the Nazis in the Second World War and the millions of securitized mortgages foreclosed in the wake of the Great Recession converge on a fundamental legal principle: who really holds rightful title? Seemingly worlds apart, these separate yet remarkably similar forms of property challenge the American judiciary to allocate property rights between adversaries steadfast in their contention of rightful ownership. The legal fulcrum in this allocation often rests not on the equity or righteousness of either parties’ claim—whether museum versus heir or bank versus former homeowner—but instead on ...


Doctrinal Approaches To The Animal Breeders’ Rights Granting, Diana Ivanova, Julia Fedorova Aug 2015

Doctrinal Approaches To The Animal Breeders’ Rights Granting, Diana Ivanova, Julia Fedorova

Diana V. Ivanova Dr.

In the paper we analyze foreign and national doctrinal approaches to the animal breeders’ rights granting. Its genesis, legal nature of animal breed, and location of related legal norms are considered. We try to justify the possibility of granting animal breeders’ rights in the Republic of Belarus.


Infringement As Unfair Competition: A Blueprint For Global Governance?, Sean Pager, Eric Priest Aug 2015

Infringement As Unfair Competition: A Blueprint For Global Governance?, Sean Pager, Eric Priest

Sean Pager

INFRINGEMENT AS UNFAIR COMPETITION: A BLUEPRINT FOR GLOBAL GOVERNANCE?

Sean A. Pager Michigan State University College of Law

Eric Priest University of Oregon School of Law

ABSTRACT

This Article examines a new approach to address persistent regulatory failures in global supply chains. In a series of recent cases, unfair competition actions have been brought in U.S. court against foreign manufacturers who infringe software overseas under the theory that the cost savings from infringement confers an unfair advantage in U.S. markets. While this theory has been advanced in the intellectual property context, the same approach could work to target ...


Traditional Knowledge Rights And Wrongs, Sean Pager Aug 2015

Traditional Knowledge Rights And Wrongs, Sean Pager

Sean Pager

SourceURL:file://localhost/Users/sean/Documents/Folklore%20TK/Unpacking%20ABSTRACT.doc

Traditional Knowledge Rights and Wrongs

Sean A. Pager, Michigan State University

ABSTRACT

Should the intangible heritage of indigenous people be subject to intellectual property rights? After years of effort, international delegates are poised to complete a pair of ambitious treaties that would accomplish this goal. This Article provides the first detailed analysis and critique of the draft treaties, which provide for exclusive rights in traditional knowledge and cultural expression, respectively. Proponents of such protection often invoke both cultural integrity and economic justice rationales. Yet, these rationales dictate conflicting imperatives ...


On Climate Change And Cyber Attacks: Leveraging Polycentric Governance To Mitigate Global Collective Action Problems, Scott Shackelford Aug 2015

On Climate Change And Cyber Attacks: Leveraging Polycentric Governance To Mitigate Global Collective Action Problems, Scott Shackelford

Scott Shackelford

Although the atmosphere and cyberspace are distinct arenas, they share similar problems of overuse, difficulties of enforcement, and the associated challenges of collective inaction and free riders. Moreover, “[m]illions of actors affect the global atmosphere[,]” just as they do the Internet. With weather patterns changing, global sea levels rising, and temperatures set to exceed 1.5 degrees Celsius by 2100, climate change is a problem affecting the entire world, but one in which the benefits are dispersed and the harms are often concentrated. Similarly, much of the cost of cyber attacks is focused in a relatively small number of ...


Adopting Subsequent Remuneration Right In Chinese Copyright Law, Xi Chen Aug 2015

Adopting Subsequent Remuneration Right In Chinese Copyright Law, Xi Chen

Xi Chen

One heavily and contentiously argued clause in Chinese Copyright Law amendments drafts focuses on the practicality of granting authors of audiovisual works the legal right to collect subsequent remunerations (SRR), when their works are reused in subsequent exploitations.

With the rapid increase of media channels for the Chinese movie industry, and other entertainment industries relying on a heavy usage of audiovisual work, authors demand that they should be entitled to the profit earned from derivative markets and other media channel beyond the first intended market. In order to balance the conflicting interest between the author and the producer, and to ...


Copyright In Pantomime Aug 2015

Copyright In Pantomime

Brian L. Frye

Why does the Copyright Act specifically provide for the protection of “pantomimes”? This article shows that the Copyright Act of 1976 amended the subject matter of copyright to include pantomimes simply in order to conform it to the Berne Convention for the Protection of Literary and Artistic Works. It further shows that the Berlin Act of 1909 amended the Berne Convention to provide for copyright protection of “les pantomimes” and “entertainments in dumb show” in order to ensure copyright protection of silent motion pictures. Unfortunately, the original purpose of providing copyright protection to “pantomimes” was forgotten. This Article argues that ...