Law Commons^™

Operating Internationally Under The Current Patchwork Of National Exceptions And Limitations To Copyright (With An Ai Angle) Plus: Nevada Ip Statistics, Marketa Trimble

Media & Informal Publications

Professor Trimble delivered a presentation for the 2024 Intellectual Property Conference, hosted by the Intellectual Property Law Section of the State Bar of Nevada.

Antitrust Class Action To Challenge Collusion Among The World’S Six Largest For-Profit Publishers Of Peer-Reviewed Scholarly Journals, Lucina Uddin, Dean M. Harvey, Jallé H. Dafa, Benjamin A. Trouvais, Emily N. Harwell, Benjamin D. Elga, Janet Herold

Copyright, Fair Use, Scholarly Communication, etc.

Scholar and scientist Dr. Lucina Uddin (the “Scholar Plaintiff”) brings this antitrust class action to challenge collusion among the world’s six largest for-profit publishers of peer-reviewed scholarly journals: (1) Elsevier B.V.; (2) Wolters Kluwer N.V.; (3) John Wiley & Sons, Inc.; (4) Sage Publications, Inc.; (5) Taylor and Francis Group, Ltd.; and (6) Springer Nature AG & Co. KGaA (collectively, the “Publisher Defendants”). In violation of Section 1 of the Sherman Act, the Publisher Defendants conspired to unlawfully appropriate billions of dollars that would have otherwise funded scientific research (the “Scheme”).

The Publisher Defendants’ Scheme has three primary components. First, …

Hachette V. Internet Archive: How And Why The Courts Finally Broke Copyright’S Social Contract, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

The exclusive rights of copyright owners have always been overbroad which, if read literally, would make many common activities illegal (e.g., reading a book during library story hour, making a mixed tape, etc). What has prevented overreach is a social contract. The public at large has been tolerant of copyright’s broad grant of rights because of the understanding that the rights would be exercised only in very limited circumstances. The rights were not intended to empower copyright owners to undermine the overwhelming number of reasonable uses of copyrighted works that make society productive. For centuries, rightsholders and courts have generally …

A Program To Improve The Efficiency And Quality Of Patent Examination, Keith N. Hylton, Madisyn Lynn Richards

Faculty Scholarship

In this article we suggest three novel amendments to U.S. patent law to increase efficiency and decrease costs. We first contend that while the assertion of invalid patents is detrimental because of anticompetitive effects, such competition concerns should place no duty upon applicants to disclose prior art at the outset. Additionally, we argue that to avoid resource waste, the USPTO should outsource prior art searches for certain applications, as in Japan. Finally, we propose a system where patentees have the option to elect to a patent box regime that reduces their taxes on patent profits substantially (e.g., from 21% to …

Wipo General Assembly 65th: Issues Affecting The Right To Research, Sean Flynn, Andres Izquierdo

Joint PIJIP/TLS Research Paper Series

This paper provides background and options for countries to consider in relation to items on the agenda of the 65th meeting of the WIPO General Assembly. It is prepared by the Project on Copyright the Right to Research of the Program on Information Justice and Intellectual Property, which includes the goal of sharing information and technical assistance to governments in international policy deliberations that impact the rights of scientific researchers in the digital context. The work of the WIPO General Assembly Agenda includes several matters that impact the rights of researchers. These include review of the work and recommendations of …

The Sufficiency Of Disclosure Of Ai Inventions, Mateo Aboy, Aparajita Lath, Timo Minssen, Kathleen Liddell

Articles

• The complex and data-driven nature of artificial intelligence (AI) raises questions for the sufficient disclosure of patent applications in this field. What are the European patent disclosure requirements for AI inventions?

• One challenge is that, prior to training, AI systems can be considered generic models. But after training, they transform into specialized AI systems to solve a particular problem. This transformation requires training data, making it an integral part of the AI system’s definition. But to what extent is the disclosure of the training data or training process necessary for patent disclosure?

• The Boards of Appeal of the European Patent …

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A Peek Behind The Scenes At The Making Of Three Decades Of Supreme Court Copyright Decisions, Jonathan Band

Joint PIJIP/TLS Research Paper Series

No abstract provided.

"The Law Doesn't Work Like A Computer": Exploring Software Licensing Issues Faced By Legal Practitioners, Nathan Wintersgill, Trevor Stalnaker, Laura A. Heymann, Oscar Chaparro, Denys Poshyvanyk

Faculty Publications

Most modern software products incorporate open source components, which requires compliance with each component’s licenses. As noncompliance can lead to significant repercussions, organizations often seek advice from legal practitioners to maintain license compliance, address licensing issues, and manage the risks of noncompliance. While legal practitioners play a critical role in the process, little is known in the software engineering community about their experiences within the open source license compliance ecosystem. To fill this knowledge gap, a joint team of software engineering and legal researchers designed and conducted a survey with 30 legal practitioners and related occupations and then held 16 …

The President’S Foreign Affairs Power Over Personal Data, Anupam Chander, Paul M. Schwartz

Georgetown Law Faculty Publications and Other Works

This Article reveals a surprising expansion of presidential authority to control goods and services available in the United States because of the information flows that they entail. Such authority is grounded in laws focused on protecting national security, here with respect to foreign surveillance and propaganda. But broad executive powers over our information infrastructure raises significant concerns with respect to core American values of free expression and due process. Worries about unfettered foreign access to data should be coupled with worries about unfettered executive control over our information services and technologies.

The Ilaiyaraaja Copyright Dispute Points To Issues Lyricists, Music Composers Face In India, Arul George Scaria

Popular Media

Excerpt:

"Two recent legal notices sent by the illustrious musician Ilaiyaraaja have reignited the debate over the ownership of rights over musical compositions synchronised in movies.... A closer examination of these controversies may reveal that Ilaiyaraaja might be drawing attention to a broader issue that lyricists and music composers in India have faced for over four decades.

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It is high time that the courts in India and policymakers take concrete steps to correct the copywrongs emerging from the 1977 Supreme Court judgment in the 'Indian Performing Rights Society v. Eastern India Motion Pictures Association' case."

A Right To Republish: Redesigning Copyright Law For Research Works, Faith O. Majekolagbe

Joint PIJIP/TLS Research Paper Series

Research works occupy a unique place in the knowledge economy. They are foundational to human development, and they expand our existing knowledge base and catalyze entirely new fields of study. Creators of research works have a significant interest in the public accessibility of their works at the earliest opportunity with no expectation of financial returns from sales and distribution. As such, they constitute a different category of works and facilitate distinct considerations than other creative goods governed by copyright. Copyright law is organized around the provision of economic incentives to facilitate the continued production and distribution of authorial works for …

Centering Relationality And Care For Stewardship Of Indigenous Research Data, Miranda Belarde-Lewis, Sandra Littletree, Iisaaksiichaa Ross Braine, Kaitlin Srader, Nestor Guerrero, Carole L. Palmer

Copyright, Fair Use, Scholarly Communication, etc.

The CARE Principles for Indigenous Data Governance are a seminal advance in the stewardship of Indigenous data. The Data Services for Indigenous Scholarship and Sovereignty (DSISS) project is working to guide how research libraries and data repositories can apply the CARE principles to support scholars of Indigenous culture and language. Building on a set of foundational case studies of Indigenous scholarship, this paper reports on analysis of formal engagement activities with scholars, Indigenous community members, and information and data professionals. We discuss three prominent themes—ownership, trust, and relational accountability—and their implications for concrete steps toward implementation of the CARE principles …

Sanctions For Non Disclosure, As Set Out In Article 6 Of The Wipo Basic Proposal On Intellectual Property, Genetic Resources And Traditional Knowledge, Should Include Possible Revocation Of A Patent, James Love, Claire Cassedy

Joint PIJIP/TLS Research Paper Series

The basic proposal for an international legal instrument relating to intellectual property, genetic resources and traditional knowledge associated with genetic resources prepared by the World Intellectual Property Organization (WIPO) Secretariat (GRATK/DC/3) sets out in its Article 3 a narrow obligation to disclose (1) the country of origin of the genetic resource, or if not known, its source, and (2) the Indigenous Peoples or local community that provided traditional knowledge associated with the genetic resource, or the source of such knowledge.

Article 6 of the basic proposal sets out the sanctions and remedies for failures to make such disclosures. Among the …

Limitations And Exceptions In The Wipo Instrument On Genetic Resources And Associated Traditional Knowledge, Sean Flynn

Joint PIJIP/TLS Research Paper Series

One of the hot topics in the World Intellectual Property Organization (WIPO) diplomatic conference on an instrument on “Intellectual Property, Genetic Resources and Traditional Knowledge Associated with Genetic Resources” is whether and what exceptions language should be included in the text. At the brief public report from Committee I on May 15, 2024, the Chair reported: “There appears to be adequate support for eliminating Article 4, limitations and exceptions. Some parties opposed.” This Blog provides some background information on the Article and analysis of potentially applicable models and concepts for the provision, including analysis of similar treaties with no exceptions.

Unrestricted Versus Regulated Open Data Governance: A Bibliometric Comparison Of Sars-Cov-2 Nucleotide Sequence Databases, Nathanael Sheehan, Federico Botta, Sabina Leonelli

Copyright, Fair Use, Scholarly Communication, etc.

Two distinct modes of data governance have emerged in accessing and reusing viral data pertaining to COVID-19: an unrestricted model, espoused by data repositories part of the International Nucleotide Sequence Database Collaboration and a regulated model promoted by the Global Initiative on Sharing All Influenza data. In this paper, we focus on publications mentioning either infrastructure in the period between January 2020 and January 2023, thus capturing a period of acute response to the COVID-19 pandemic. Through a variety of bibliometric and network science methods, we compare the extent to which either data infrastructure facilitated collaboration from different countries around …

Copyright & Modding In The Modern Gamespace, Josephine Railston

Student Scholar Symposium Abstracts and Posters

In the modern gamespace, modding has become an excellent opportunity for video game enthusiasts to express their creativity and love for a game; but what happens when that passion is stifled by a major company? My poster presentation will examine the ethics behind modding and ROM hacking, from both the perspectives of major video game corporations as well as their fanbase at large. We will analyze this issue using the case study of Pokémon Prism, a Pokémon Crystal ROM hack, which was canceled days prior to its release following a cease and desist by Nintendo. More specifically, we will investigate …

Music Borrowing And Copyright Law: A Genre-By-Genre Analysis, Hannah Rosborough

Articles, Book Chapters, & Popular Press

Edited by Enrico Bonadio and Chen Wei Zhu, Music Borrowing and Copyright Law: A Genre-by-Genre Analysis confronts the valuable task of addressing the following points of significance: First, the relationship between copyright law and music borrowing is dynamic. Second, copyright and music borrowing have most often been considered and centred around a Western perspective. Third, there is a concern that copyright may stifle creativity in the music space. And fourth, the relationship between copyright law and music requires a fulsome review to better understand the borrowing norms and practices of musicians.

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Music Borrowing and Copyright Law: A Genre-by-Genre Analysis …

Cerveza Cristal: A Copyright Loophole In A Beer Ad From 2003?, Sebastian Saavedra Irarrazaball

Cardozo Arts & Entertainment Law Journal Blog

The internet stumbled onto a ready-made meme last month in the form of 20-year-old beer commercials from South America1. Back in 2003, a Chilean advertising agency decided to elevate the art of product placement. Their canvas: a planned broadcast of the original trilogy of Star Wars during a primetime slot on the second most popular national channel. DVDs were in their commercial infancy in the country, VHS tapes were available, but not everywhere. There was a guaranteed, captive audience.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on April 30, 2024. The original post …

Are Researchers Citing Their Data? A Case Study From The U.S. Geological Survey, Grace C. Donovan, Madison L. Langseth

Copyright, Fair Use, Scholarly Communication, etc.

Data citation promotes accessibility and discoverability of data through measures carried out by researchers, publishers, repositories, and the scientific community. This paper examines how a data citation workflow has been implemented by the U.S. Geological Survey (USGS) by evaluating publication and data linkages. Two different methods were used to identify data citations: examining publication structural metadata and examining the full text of the publication. A growing number of USGS researchers are complying with publisher data sharing policies aimed to capture data citation information in a standardized way within associated publications. However, inconsistencies in how data citation information is documented in …

Fanfiction Flicks: Dissecting The Expected Legal Ramifications Of Harry Styles Homages On The Big Screen, Aydan Urias

Cardozo Arts & Entertainment Law Journal Blog

When the trailer for the highly anticipated Amazon Prime film The Idea of You debuted on YouTube in March 2024, viewers were captivated by the striking resemblance between the main character, Hayes Campbell, portrayed by Nicholas Galitzine, and the renowned former British One Direction member, Harry Styles. The film is based on the novel The Idea of You by author Robinne Lee. In a 2017 interview, Lee admitted to beginning the novel after seeing a YouTube video of the boy band One Direction and stated that she was specifically inspired by the personal life of Harry Styles.

This post was …

Tennessee Legislature Declares That The Human Voice Will Remain ‘The King’ In Nashville, Ryan Bickett

Cardozo Arts & Entertainment Law Journal Blog

Last month, Tennessee broke legal ground by passing the Ensuring Likeness Voice and Image Security, or “ELVIS,” Act. This law amends the state’s existing publicity laws to include protections for an individual’s voice in general as well as specifically against artificial intelligence (AI) impersonation. The statute defines a voice as “a sound in a medium that is readily identifiable and attributable to a particular individual, regardless of whether the sound contains the actual voice or a simulation of the voice of the individual.” This standard shows a statutory expansion of legal protections for voices that blossomed with major cases in …

The Impact Of The “Misclassification” Of Employees As Independent Contractors On New York City’S Performing Arts Institutions And Gig-Based Performers, Katie Sigety

Cardozo Arts & Entertainment Law Journal Blog

During the height of the COVID-19 pandemic, the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) made it possible for independent contractors to access unemployment benefits, or “Pandemic Unemployment Assistance” (“PUA”), for the first time. This created a new awareness for how many gig-based performing artists were considered independent contractors. In the wake of the PUA program expiration in 2021, the DOL identified 425,000 fraudulent unemployment benefit claims filed, totaling $5.5 billion, during the COVID-19 pandemic. The fraudulent claims were filed using the real identities of individuals who were not employed, which were likely stolen during previous data breaches …

Road To A Chemistry-Specific Data Management Plan, Daniela Adele Hausen, Ann-Christin Andres, Jochen Ortmeyer, Sonja Herres-Pawlis

Copyright, Fair Use, Scholarly Communication, etc.

In order to develop a discipline-specific data management plan (DMP) template, it is important to obtain information from researchers. For a chemistry-specific template, NFDI4Chem conducted a series of interviews with 27 participants and used data from the RDA WG Discipline-specific Guidance for DMP online survey.

The interviews showed that the implementation of research data management in everyday work is a big challenge. Key findings from the interview series highlight challenges in implementing FAIR principles, with a focus on “Findability” and “Reusability.” The importance of linking physical samples and data in chemistry is emphasised, with discussions on storage, archiving, and the …

Enhancing Public Access To Agency Law, Bernard Bell, Cary Coglianese, Michael Herz, Margaret Kwoka, Orly Lobel

Faculty Articles

A just, democratic society governed by the rule of law requires that the law be available, not hidden. This principle extends to legal materials produced by administrative agencies, all of which should be made widely accessible to the public. Federal agencies in the United States do disclose online many legal documents—sometimes voluntarily, sometimes in compliance with statutory requirements. But the scope and consistency of these disclosures leaves considerable room for improvement. After conducting a year-long study for the Administrative Conference of the United States, we identified seventeen possible statutory amendments that would improve proactive online disclosure of agency legal materials. …

Shades Of Green: Navigating The Legality Of Environmental Marketing, David Zack

Cardozo Arts & Entertainment Law Journal Blog

A majority of Americans are concerned about climate change.1 This fear seems to be a driver of consumer spending decisions. According to a study by PDI Technologies, 68% of Americans are willing to spend more on environmentally sustainable products than their competitors that are not sustainable.2 This number has steadily grown over the past two years.3 This figure is even greater for key marketing demographics. 77% of Gen Z, 72% of millennials, and 76% of parents would be willing to do so. Because of this, companies have increasingly sought to position and market themselves as green companies.

This post was …

Can You Smell A Lawsuit Cooking? Possible Risks With The Rock’S Trademarks, Cameron Brody

Cardozo Arts & Entertainment Law Journal Blog

Dwayne Johnson is one of the most recognizable and successful working actors on the planet. For an entire generation, he is synonymous with smash-hit franchises such as Baywatch, Tooth Fairy, and Jungle Cruise. In fact, between 2019 and 2021, he was the highest-paid actor in Hollywood and raked in $270,000,000 in 2022 alone. Further, he is a co-founder of Teremana Tequila, which holds an estimated value of $3.5 billion, putting him on track alongside George Clooney and Ryan Reynolds as success stories in the celebrity alcohol market. His most recent endeavor, however, may put him on track towards a series …

Five Suggestions Towards User-Centred Data Repositories In The Social Sciences, Elias Herman Kruithof, Christophe Vanroelen, Laura Van Den Borre

Copyright, Fair Use, Scholarly Communication, etc.

Data repositories for the social sciences are facing some discipline-specific challenges. This essay provides an overview of the four key challenges. In addition, five suggestions are made to strengthen domain-specific online data repositories in the social sciences, supported by good practices. Using a user-centred approach, these suggestions aim to further open up the social sciences data landscape. The essay first addresses insights regarding the sharing of quantitative and qualitative data in light of the specific needs and issues regarding these two types of data. Thereafter, we suggest (i) ‘data labs’ for novice data re-users, (ii) advocate for the repository as …

Toward The Substitutionary Promise Of Ptab Review, Saurabh Vishnubhakat

Faculty Online Publications

Although administrative patent trial proceedings under the Leahy-Smith America Invents Act (AIA) have done much to improve the efficient reevaluation of patent validity, significant problems remain. Divergent burdens of proof among the United States Patent and Trademark Office (USPTO) and Patent Trial and Appeal Board (PTAB) and the U.S. district courts allow the agency to disregard prior judicial decisions about patent validity and for patents to be relitigated even after surviving judicial review. Divergent claim construction standards allow for similar arbitrage, and, although the USPTO has now aligned its claim construction approach with that of the courts through rulemaking, that …

Wipo Good Practice Toolkit For Collective Management Organisations 2021: Suggestions For Possible Amendment, Desmond Oriakhogba

Joint PIJIP/TLS Research Paper Series

Drawing examples from national and international legal instruments, and based on existing studies, this comment makes suggestions for possible amendment of the World Intellectual Property Organization’s Good Practice Toolkit for Collective Management Organisations 2021 (CMO Toolkit). The suggestions are for inclusion of good practices in the CMO Toolkit that can inform the regulation of CMOs to prevent them from constituting obstacles to open access non-commercial licensing and L&Es-enabled access for education and research. The suggestion also covers good practices that will prevent CMOs from impeding the smooth and effective development of artificial intelligence systems. Recommendations include protecting rightholders' ability to …

Unmasking Deepfakes: Navigating The Copyright Quagmire, Ben Gross

Cardozo Arts & Entertainment Law Journal Blog

In the ever-evolving landscape of digital technology, the emergence of deepfake technology has raised profound concerns, especially in the realm of copyright law. Deepfakes, sophisticated synthetic media created using artificial intelligence, can manipulate or replace existing content, often blurring the lines between reality and fiction.1 As these digital creations become more prevalent, questions surrounding their implications under copyright law have taken center stage.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on April 5, 2024. The original post can be accessed via the Archived Link button above.