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Full-Text Articles in Law
The Protection Of Performers Under U.S. Law In Comparative Perspective, Daniel Gervais
The Protection Of Performers Under U.S. Law In Comparative Perspective, Daniel Gervais
Daniel J Gervais
The Garcia v Google case raised fundamental questions about US law as it applies to performed works. This Essay uses a comparative lens to shed some hopefully useful light on the debate. The Essay proceeds essentially in two parts. First, the Essay explores and critiques the international protection of performers’ rights using both history and policy as focal points. The following part describes the protection of performers and other owners of “related rights” in US law and explains the differences that adopting a related rights regime would bring about in the United States.
Trips & Development, Daniel J. Gervais
Trips & Development, Daniel J. Gervais
Daniel J Gervais
This brief Chapter in the (forthcoming) SAGE Handbook of Intellectual Property examines available data and analyses concerning the impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) on development. The Chapter considers distinctions among types of countries and industries, and the role of the World Intellectual Property Organization (WIPO).
Plain Packaging And The Interpretation Of The Trips Agreement, Daniel J. Gervais, Susy Frankel
Plain Packaging And The Interpretation Of The Trips Agreement, Daniel J. Gervais, Susy Frankel
Daniel J Gervais
Plain packaging of cigarettes as a way of reducing tobacco consumption and its related health costs and effects raises a number of international trade law issues. The plain packaging measures adopted in Australia impose strict format requirements on word trademarks (such as Marlboro or Camel) and ban the use of figurative marks (colors, logos, etc.). As a result, questions have been raised as to plain packaging’s compatibility with the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). WTO members can validly take measures to protect and promote public health, but in doing so they …
Cognac After Spanish Champagne ? Geographical Indications As Certification Marks, Daniel J. Gervais
Cognac After Spanish Champagne ? Geographical Indications As Certification Marks, Daniel J. Gervais
Daniel J Gervais
The Protection of Geographical Names as Certification Marks in common law jurisdictions such as the United Kingdom and the United States is examined in light of the UK Spansih Champagne and other "Drinks" cases and similar cases in the United States dealing with the name "Cognac."
The Landscape Of Collective Management Schemes, Daniel J. Gervais
The Landscape Of Collective Management Schemes, Daniel J. Gervais
Daniel J Gervais
This paper, based on a keynote talk at Columbia Law School, reviews the nature of collective management organizations (CMOs), their regulation, in particular the difference in the US regulatory regimes for performing rights organizations (PROs), digital transmissions of sound recordings and reprography. The paper reviews the incoherent rate-setting processes under consent decrees and sections 112 and 114 of the US Copyright Act. The paper also considers the role that CMOs can and should play in empowering new business models and modes of access to online material.
The Rise Of 360 Deals In The Music Industry, Daniel J. Gervais
The Rise Of 360 Deals In The Music Industry, Daniel J. Gervais
Daniel J Gervais
360 deals can give record companies access to revenue from movie contracts, merchandise sales, and other sources “all around” the artist. They reflect a transition from an industry model focused on delivery of goods (compact discs or even iTunes tracks) to one in which music is increasingly a service generating revenues from multiple activities bundled with phone, Internet, or cable access. The authors explore the history, contents, benefits, and future of 360 deals.
Cloud Control: Copyright, Global Memes And Privacy, Daniel J. Gervais, Daniel J. Hyndman
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
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 …
Traditional Knowledge: Are We Closer To The Answers? The Potential Role Of Geographical Indications, Daniel J. Gervais
Traditional Knowledge: Are We Closer To The Answers? The Potential Role Of Geographical Indications, Daniel J. Gervais
Daniel J Gervais
The debate concerning the protection of, and access to, “traditional knowledge” has been going on for some time. Academics, governments, non-governmental and intergovernmental organizations, and representatives of indigenous communities have made arguments on many different levels. The most interesting debates are normative in nature: What should international law do about traditional knowledge? Is protection desirable? To what end? Equally interesting is the somewhat more technical debate about how we can proceed to implement some of the (tentative) normative conclusions. The normative debate is situated at the confluence of intellectual property law, cultural studies, ethnology and anthropology. In this short paper, …
The Lisbon Agreement’S Misunderstood Potential, Daniel J. Gervais
The Lisbon Agreement’S Misunderstood Potential, Daniel J. Gervais
Daniel J Gervais
This article focuses on the similarities and differences between the proposed TRIPS register of geographical indications for wines (and now spirits) and its relationship with the 1958 Lisbon Agreement on the Protection and Registration of Appellations or Origin. I examine the definitional differences between the two instruments top determine their commensurability. My suggestion is that the Lisbon register should be considered as a possible basis to establish the TRIPS register, with or without an extension to products other than wines and spirits. The differences between the two and deficiencies could be handled appropriately by adopting a protocol to the Lisbon …
A Uniquely Canadian Institution: The Copyright Board Of Canada, Daniel J. Gervais
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
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 Role Of International Treaties In The Interpretation Of Canadian Intellectual Property Statutes, Daniel J. Gervais
The Role Of International Treaties In The Interpretation Of Canadian Intellectual Property Statutes, Daniel J. Gervais
Daniel J Gervais
The relationship between domestic intellectual property statutes and international law in growing in scope and depth. This paper is a chapter in a book that emphasizes that international law is not only used to interpret domestic law but in fact may itself become a guide for international tribunals, such as the World Trade Organization Dispute-Settlement Body. The Paper considers mostly the role that international norms have played in recent decisions of the Supreme Court of Canada and the Federal Court.
Use Of Copyright Content On The Internet: Considerations On Excludability And Collective Licensing, Daniel J. Gervais
Use Of Copyright Content On The Internet: Considerations On Excludability And Collective Licensing, Daniel J. Gervais
Daniel J Gervais
The Internet has been a catalyst for problems latent within the copyright system. Fundamentally, the question is to determine under what circumstances should a copyright holder have a right to exclude others from using her copyright work on the Internet? This is the topic of this chapter. The underlying hypothesis is that policy analysis concerning copyright has shifted because it is now facing a number of formidable opponents, in most cases for the first time on that scale. Those opponents are other rights, including privacy. Copyright is not or no longer a closed system with exceptions looping back to a …
Application Of An Extended Collective Licensing Regime In Canada: Principles And Issues Related To Implementation, Daniel J. Gervais
Application Of An Extended Collective Licensing Regime In Canada: Principles And Issues Related To Implementation, Daniel J. Gervais
Daniel J Gervais
The report examines the advantages, disadvantages and constraints of using an extended collective license in Canada (or extended repertoire) and concludes that the system would make sense in some areas. The use of this system in other countries is discussed.
Feist Goes Global: A Comparative Analysis Of The Notion Of Originality In Copyright Law, Daniel J. Gervais
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 …
Collective Management Of Copyright And Neighbouring Rights In Canada: An International Perspective, Daniel J. Gervais
Collective Management Of Copyright And Neighbouring Rights In Canada: An International Perspective, Daniel J. Gervais
Daniel J Gervais
This document, prepared in 2001, surveys Canadian collectives, compares the Canadian situation to the situation in a number of other countries, including the United States, and proposes three changes to Canadian legislation, including the introduction of extended collective licensing.