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Intellectual Property Law

Selected Works

Copyright

Daniel J Gervais

Publication Year

Articles 1 - 4 of 4

Full-Text Articles in Law

Improper Appropriation, Daniel J. Gervais Oct 2019

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 Oct 2019

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 Dec 2017

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

Daniel J Gervais

This article offers a normative analysis of key blockchain technology concepts from the
perspective of copyright law. Some features of blockchain technologies—scarcity, trust,
transparency, decentralized public records and smart contracts—seem to make this
technology compatible with the fundamentals of copyright. Authors can publish works
on blockchain creating a quasi-immutable record of initial ownership, and encode
‘smart’ contracts to license the use of works. Remuneration may happen on online distribution
platforms where the smart contracts reside. In theory, such an automated
setup allows for the private ordering of copyright. Blockchain technology, like Digital
Rights Management 20 years ago, is thus presented …


Copyright, E-Commerce And The World Wide Web, Daniel J. Gervais Dec 2001

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 …