Law Commons^™

Excerpts Of Sccr 44 Delegate Statements, Sean Flynn, Andres Izquierdo

Joint PIJIP/TLS Research Paper Series

The World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights (SCCR) held its 44th meeting November 6-8, 2023. This post includes excerpts from the public statements made by country or regional delegations during the meeting.

The Conclusions Of Sccr 44, Sean Flynn

Joint PIJIP/TLS Research Paper Series

Last week, the World Intellectual Property Organization’s Standing Committee on Copyright and related Rights (SCCR) held its 44th meeting where substantial progress was made in protecting public interest issues within the two major standing items of the agenda -- on the Broadcast Treaty and on Limitations and Exceptions. This document summarizes the decisions made at the meeting as recorded in the Chair’s Summary.

The Constitutional Court Of Colombia Imposes Limits On The Use Of Internet Jammers During Social Protests, Carolina Botero, Lina Paola Velásquez

Joint PIJIP/TLS Research Paper Series

The Constitutional Court of Colombia has issued an important ruling regarding the use of the Internet as the main tool to guarantee the fundamental rights to freedom of speech and access to information during social protests. This ruling marks an important precedent in the matter because it imposed new obligations on the State and the government to guarantee the "maximum level of information". Likewise, the Court ordered the regulation of the use of signal jammers during social protests. This article will analyze the ruling and its effects in Colombia.

Special Challenges In Execution Of Arbitral Awards In Public Private Partnerships, Srividhya Ragavan, Niraj Kumar Seth

Faculty Scholarship

With around 47 million pending cases at various stages of Indian judiciary and one of the lowest levels of judges per million of population in the world, India’s arbitration regime presents a ray of hope for millions of Indians who face the prospect of justice being denied to them due to inordinate delays caused by a clogged judicial pipeline. The enactment of the Arbitration and Conciliation Act, 1996 was presented as a viable alternative to resolve commercial disputes in a timely manner. This paper uses a case study to discuss how arbitration in India has not fulfilled the timeliness promise …

Executive Order On The Safe, Secure, And Trustworthy Development And Use Of Artificial Intelligence, Joseph R. Biden

Copyright, Fair Use, Scholarly Communication, etc.

Section 1. Purpose. Artificial intelligence (AI) holds extraordinary potential for both promise and peril. Responsible AI use has the potential to help solve urgent challenges while making our world more prosperous, productive, innovative, and secure. At the same time, irresponsible use could exacerbate societal harms such as fraud, discrimination, bias, and disinformation; displace and disempower workers; stifle competition; and pose risks to national security. Harnessing AI for good and realizing its myriad benefits requires mitigating its substantial risks. This endeavor demands a society-wide effort that includes government, the private sector, academia, and civil society.

My Administration places the highest urgency …

Copyright And Generative Ai: Insights From The Project On The Right To Research, Sean M. Fiil-Flynn

Joint PIJIP/TLS Research Paper Series

With the widespread launch of “generative AI” technology capable of creating music, art and text that could potentially substitute for the work of human creators, policy makers around the world are highly focused on how and whether copyright law should change in response. This paper summarizes results from studies that have been commissioned as part of the Project on the Right to Research in International Copyright coordinated by American University’s Program on Information Justice and Intellectual Property. That project focuses on uses of copyrighted works in text and data mining technology by scientific researchers. The same text and data mining …

The Economics Of Medical Patents And The U.S. Government’S Role In Drug Price Negotiations, Eddie Halwani

AELJ Blog

The U.S. government’s recent but unusual push to negotiate drug prices has struck a chord with many Americans, with polls showing a significant, bipartisan majority favoring the action.This action presents an opportunity to appreciate medical patents’ role in spurring innovation forward. Amid changing policies, medical patents shape the accessibility and affordability of care through their impact on drug pricing. Drug prices in the United States are notably high—about 2.4 times those in other developed countries.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on October 24, 2023. The original post can be accessed via …

Signs Of Life: The Current State Of Generative Content And Copyright Protection, Ryan Bickett

AELJ Blog

With the recent rise in Artificial Intelligence (“AI”) and its broadening use by the public, questions have arisen regarding the applicability of copyright law over both the content it sources and creates. While the answers remain unclear as this technology rapidly updates, there have been recent legal developments which will shape how we deal with this content.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on October 24, 2023. The original post can be accessed via the Archived Link button above.

Developing A Human Right To Research In International Law, Sanya Samtani

Joint PIJIP/TLS Research Paper Series

The covid-19 pandemic has highlighted issues concerning equitable access to and participation in research. But research has always been indispensable to human development. To what extent does international law guarantee access to research as well as the practice of researching? Drawing on the social anthropology definition of research as the pursuit of that which is not yet known, this paper locates a novel human right to research within the core international human rights covenants. The paper sets out the scope and content of the right and the nature and content of State obligations flowing from it. It concludes by outlining …

Copyright Fiduciaries: Problems And Solutions, Jessica Silbey

Faculty Scholarship

Andrew Gilden & Eva E. Subotnik, Copyright’s Capacity Gap, 57 U.C. Davis L. Rev. __ (forthcoming, 2023), available at SSRN (Aug. 9, 2023).

In this forthcoming article, Andrew Gilden and Eva Subotnik begin an important conversation about an underexplored area of copyright law. Their focus is copyright law’s inconsistent treatment of mental capacity. Under copyright law, copyright authors can produce valuable copyrighted work but those same authors may lack the legal capacity to make decisions about if, when, or how to exploit that work. For example, children and people with mental illness or disability can be copyright authors, but …

I Can’T Believe It’S Not Skittles! Broad Summary Of Advertising And Packaging Regulations For Cannabis Dispensaries In New York State, Lauren Woods

AELJ Blog

Newly passed legislation often represents the changing nature of public opinion and societal attitudes. In New York State, for example, the general public’s softening and more accepting view of marijuana consumption was highlighted when the state approved legal marijuana use in a medical setting in 2014. Seven years later, New York State passed the Marihuana Regulation & Taxation Act (“MTRA”) and officially legalized “the possession of adult-use recreational cannabis for all adults over the age twenty-one.” A highlight of the act is how it addresses how the current state of cannabis regulation in the state is suboptimal, and how its …

The Aftermath Of Murphy V. Ncaa: State And Congressional Reactions To Leaving Sports Gambling Regulation To The States, Ethan Mordekhai

AELJ Blog

In 2018, the Supreme Court ruled in Murphy v. NCAA that the Professional and Amateur Sports Protection Act of 1992 (“PAPSA”) violated the anti-commandeering rule and was therefore unconstitutional. PAPSA had effectively barred states from authorizing sports gambling. The act did not make sports gambling a federal crime, however it did allow professional sports organizations to bring civil actions to enjoin violations. Thus, after the New Jersey legislature authorized sports gambling in 2012, the NCAA brought a federal action to enjoin the law on the ground that it violated PAPSA. The case made its way to the Supreme Court, and …

Mpp Covid-19 Antiviral Medicines Licenses – Licensed Territories, Supply Options For Excluded Territories, And Supply Barriers Arising From Trade-Secret Transfer, Brook K. Baker

Joint PIJIP/TLS Research Paper Series

This is a paper that analyzes Medicine Patent Pool licenses for three COVID-19 antivirals, including licensed territories, patent landscapes, supply options, regulatory status, and supply barriers arising from licensee acceptance of trade-secret information from the originator licensor. It concludes that at present there is no existing WHO prequalified licensee that can supply nirmatrelvir + ritonavir outside the Pfizer licensed territory, whereas there are potential molnupiravir licensees that can supply outside licensed territories where there is no blocking patent exists or a compulsory license has been issued in the country of import or use. The paper concludes with an assessment that …

What Happens When The Public Wants To Remove Public Art? The Second Circuit Weighs In On One Recent Vara Case, Paige Green

AELJ Blog

n 1990, the Visual Artists’ Rights Act (VARA) became a welcome addition to the federal Copyright Act of 1976. VARA was the first time the “moral rights” of an artist were federally protected in the United States. Moral rights are commonly understood to provide attribution to artists and protect the integrity of visual art pieces. Under VARA, this means authors have a right to claim authorship on pieces they create, prevent the use of their name on a work they did not create, and prohibit the destruction of works of “recognized statute” (both intentional and through gross negligence). The law …

Cardozo Aelj Author Interview Series: Seth Warshaw, Class Of 2023, Seth Warshaw

AELJ Blog

The Cardozo AELJ Author Interview Series seeks to give our readers further insight into the Articles and Notes published in the Cardozo Arts & Entertainment Law Journal. In this interview, Seth Warshaw discusses his Note, And a Second Opinion for All… And Anything Else? The Jack Eichel Saga and Issues of Medical Autonomy, which was published in Volume 41, Issue 1.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on October 10, 2023. The original post can be accessed via the Archived Link button above.

Enhancing Efficiency And Accessibility For Federal Trademark Protection: Leveraging Blockchain Technology For Prosecution, Maintenance, And Enforcement Processes., Julia Ashley-Burd Mainini

Featured Student Work

This paper conducts an analysis of the intersection between Blockchain Technology and Intellectual Property Law, with a specific focus on Trademark Law in the United States. It explores the potential utilization of Blockchain Technology to enhance the efficiency and accessibility of prosecution, maintenance, and enforcement processes for attorneys, applicants, and registrants. Additionally, the paper examines areas within the Lanham Act that could benefit from updates to promote the adoption of Blockchain Technology in trademark-related procedures.

Simplifying The Wipo Broadcasting Treaty: Proposed Amendments To The Third Revised Draft, Bernt Hugenholtz

Joint PIJIP/TLS Research Paper Series

In preparation of the 44^th meeting of the SCCR a Third Revised Draft Text for the WIPO Broadcasting Organizations Treaty was prepared by the SCCR Acting Chair. The current (third) draft contains mostly minor modifications as compared to the previous draft. The previous (second) revised draft was critically examined by the author of this document. The present document builds on the Comments by proposing amendments that transform the main points of criticism and suggestions for improvement into possible treaty language. Whereas – following the 2007 General Assembly decision – there is consensus within the SCCR that the Broadcasting Treaty …

Comments On The September 6, 2023 Draft Of A Wipo Broadcasting Treaty, The Definitions, Scope Of Application, National Treatment And Formalities, James P. Love

Joint PIJIP/TLS Research Paper Series

The World Intellectual Property Organization (WIPO) is evaluating a proposal for a new treaty that provides rights to broadcasting organizations. The negotiations began in 1997 and are currently taking place in the Standing Committee on Copyright and Related Rights (SCCR). On September 6, 2023, the WIPO Secretariat published a revised draft text prepared by the SCCR Chair, SCCR Vice-Chairs and facilitators. This article looks at certain elements of the draft concerning the definitions, scope of application, national treatment and formalities. Objections to the text focus on several draft definitions and the scope of application on the grounds that (1) very …

Vaccine Development, The China Dilemma, And International Regulatory Challenges, Peter K. Yu

Faculty Scholarship

This article examines the role played by China in the development of international regulatory standards at the intersection of intellectual prop- erty, international trade, and public health. It begins by briefly discussing the role China has played in the global health arena during the COVID-19 pandemic. The article then highlights the difficulty in determining how best to engage with the country in the development of new international regula- tory standards. It shows that the preferred method of engagement will likely depend on one’s perspective on China’s potential contributions and hin- drances: a perspective that focuses on global competition—in the economic, …

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

Walking The Talk: An Exploration Of Pathways In Implementation Of The 2013 Marrakesh Treaty - A Case Study Of Uganda, Anthony C.K. Kakooza

Joint PIJIP/TLS Research Paper Series

The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, is a WIPO administered treaty on copyright that was adopted in Marrakesh, Morocco, on 27^thJune 2013. The year 2023 therefore marks 10 years since its adoption. It is therefore an ideal time to do some stock taking as to how effective the treaty has been, thus far, in creating avenues through which blind or visually impaired persons can have easier access to published works.

This article looks at the implementation of the Marrakesh Treaty specifically in Uganda where …

Cardozo Aelj Interview Series: Professor Saurabh Vishnubhakat, Saurabh Vishnubhakat

AELJ Blog

In this interview, Cardozo Professor Saurabh Vishnubhakat discusses what he hopes to bring to Cardozo as the new Director of Intellectual Property and Information Law Program, his professional background, and what drew him to the field of intellectual property.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on September 22, 2023. The original post can be accessed via the Archived Link button above.

Two Decades Of Trips In China, Peter K. Yu

Faculty Scholarship

This chapter reviews China’s engagement with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in the past twenty years. It begins by highlighting TRIPS-related developments in the first decade of China’s WTO membership. The chapter then discusses the country’s ‘innovative turn’ in the mid-2000s and the ramifications of its changing policy positions. This chapter continues to examine the US-China trade war, in particular the second TRIPS complaint that the United States filed against China in March 2018. It concludes with observations about the impact of the TRIPS Agreement on China, China’s impact on that agreement and how the …

Utility, Copyright, And Fair Use After Warhol, Keith N. Hylton

Faculty Scholarship

This paper is a reaction to AWF v. Goldsmith (Warhol), which finds that Warhol’s adaptation of a photograph of Prince, taken by photographer Lynn Goldsmith, is not protected from copyright liability by the fair use defense. The Warhol dissent accuses the majority of being overly concerned with the commercial character of Warhol’s use, while the dissent emphasizes the artistically transformative quality of Warhol’s adaptation. These different approaches provide strong evidence that the theory of fair use remains unclear to the Court. There is a need for a simple positive theory of the fair use doctrine. That need was largely …

Additional Comments On Preliminary Draft 9, Jane C. Ginsburg

Faculty Scholarship

I am adding to the comments submitted by Profs. Balganesh, Menell and myself a list of points in PD9 that I believe require correction or clarification. These comments do not include Chapters 8, 10 or 11.

Comments On Preliminary Draft 9, Shyamkrishna Balganesh, Jane C. Ginsburg, Peter S. Menell

Faculty Scholarship

We are writing to offer our views on Preliminary Draft No. 9 (“PD9”) and express our deep and persistent concern about the direction and methodology that the Project continues to take, which we have sought to address and remedy at multiple points over the last several years. The elements of PD9 that we describe below are, in our view, particularly striking illustrations of the problems that we have previously identified. The gravity and salience of PD9’s problems are borne out in the comments of Judge Pierre Leval, who describes elements of the draft as requiring “a substantial editing and rewriting.” …

Architects, Artists, Photographers, Property Owners, The Public And Their Rights: Reconciling Vara, The Awcpa, And Copyright Fundamentals, David E. Shipley

Scholarly Works

Murals, sculpture, and other works of visual art have been parts of buildings, monuments and other structures for centuries, but copyright infringement litigation in the federal courts between artists, architects, photographers, and building owners is a relatively recent phenomenon. The outcome of these lawsuits has an impact on the public seeing works of visual art; experiencing works of visual art on buildings, monuments, and structures; and, looking at photographs of visual art on or in those architectural works. This article focuses on how the Copyright Act’s protection of artists’ rights in their works of visual art on buildings under the …

The Library & Generative Ai, Nat Gustafson-Sundell, Mark Mccullough

Library Services Publications

A demonstration of several AI tools, including ChatGPT, ChatPDF, Consensus, and more. The focus of the session is on potential student uses of the tools and related library initiatives, so we address the limits of ChatGPT as an information source. Librarians can help students learn how to use these tools responsibly and provide leadership on campus as AI is integrated into assignments.

Comparison Of Library Publishing Workflows By Oa Model, Sue Ann Gardner

University of Nebraska-Lincoln Libraries: Conference Presentations and Speeches

Population of an institutional repository is a form of publishing. Green and diamond OA library publishing workflows are compared. The workflow for gold OA does not involve library publishing. Some data about the UNL Digital Commons institutional repository (https://digitalcommons.unl.edu) are included.

Repair As Research: How Copyright Impedes Learning About Devices, Anthony D. Rosborough, Aaron Perzanowski

Joint PIJIP/TLS Research Paper Series

Widespread computerization and ubiquitous smart devices have enabled software-based copyright governance to reach into new domains. Beyond their instrumental utility, these devices are also containers of vast amounts of information in the form of software and technical know-how. Through copyright and anti-circumvention rules, however, this information can be cordoned off and confined to exclusive distribution channels. This can have a significant impact on research. While copyright law traditionally conceives research as the use of expressive works within institutional settings, this paper proposes a broader conceptualization that includes device research, including informal inquiries and DIY activities. Whether for the purposes of …