Law Commons^™

Private Fair Use: Strengthening Polish Copyright Protection Of Online Works By Looking To U.S. Copyright Law, Michal Pekala

Michal Pekala

In this essay, I consider the issue of the protection of online works in Poland, focusing in particular on the doctrine of private fair use in Polish copyright law. Private fair use permits in certain circumstances the use of works of others without the authors’ consent.. Given the nature of private fair use, it is essential that it function consistent with the purpose of copyright protection. Since the Polish Copyright Act was enacted in 1994, private fair use has lost its ability to serve as an appropriate exception to the Polish copyright laws with respect to online works. Specifically, certain …

What's A Name Worth?: Experimental Tests Of The Value Of Attribution In Intellectual Property, Christopher J. Buccafusco, Christopher Jon Sprigman, Zachary C. Burns

All Faculty Scholarship

Despite considerable research suggesting that creators value attribution – i.e., being named as the creator of a work – U.S. intellectual property (IP) law does not provide a right to attribution to the vast majority of creators. On the other side of the Atlantic, however, many European countries give creators, at least in their copyright laws, much stronger rights to attribution. At first blush it may seem that the U.S. has gotten it wrong, and the Europeans have made a better policy choice in providing to creators a right that they value. But for reasons we will explain in this …

Continuing The Conversation Of "The Economic Irrationality Of The Patent Misuse Doctrine", Christa J. Laser

Chicago-Kent Journal of Intellectual Property

This Article uses economic tools to find the best way for courts to construe or for Congress to modify the patent misuse doctrine. It attempts to continue the conversation begun by Professor Mark Lemley in his often-cited Comment, The Economic Irrationality of the Patent Misuse Doctrine. It argues that a partial economic equilibrium in patent misuse doctrine can be achieved by attempting to match Congress’s intended patent scope with the actual patent scope. It then holds that the ideal patent misuse doctrine should (1) adequately discourage patentees from seeking to exceed their patent scope while (2) continuing to encourage innovation …

The Case Of The Zia: Looking Beyond Trademark Law To Protect Sacred Symbols, Stephanie B. Turner

Chicago-Kent Journal of Intellectual Property

This Article tells the story of a tribe’s fight, over the past two decades, to reclaim its sacred symbol. Members of the Zia tribe, a Native American group located near Albuquerque, New Mexico, have been using their sacred sun symbol in religious ceremonies since 1200 C.E. Today, the symbol appears on the New Mexico state flag, letterhead, and license plate, and on numerous commercial products, including motorcycles and portable toilets. The tribe claims that the state appropriated the symbol without permission in 1925, and that the continued use of the symbol by various parties dilutes its sacred meaning and disparages …

Rebutting Obviousness In The Pharmaceutical Industry: Secondary Considerations Of Analogs, Jolie D. Lechner

Chicago-Kent Journal of Intellectual Property

Pharmaceutical companies depend on patent protection to recuperate the high costs of research and development. In regards to the patentability of structurally related compounds, the courts must decide whether a compound is obvious in view of its structurally similar prior art. In general, a compound is non-obvious over the structurally related prior art if the compound exhibits unexpected results. However, placing primary emphasis on a compound's unexpected properties is out of step with the realities of drug development. For example, during drug development, chemists will modify a compound's structure until they produce a compound that exhibits optimal pharmakinetic properties. This …

Designer Collaborations As A Solution To The Fast-Fashion Copyright Dilemma, Arielle K. Cohen

Chicago-Kent Journal of Intellectual Property

This article explores the issue of large retailers capitalizing on designers’ designs by using the method of “close copying” and the dilemma that designers face due to their lack of recourse since their designs are not afforded copyright protection. The Council of Fashion Designers of America has been lobbying Congress for protection and their efforts have created the Innovative Design Protection and Piracy Prevention Act. This legislation is currently pending but it is a revised version of the earlier Design Piracy Prohibition Act and it removes many of the controversial provisions that were in the earlier version. Therefore, there is …

Patent Reversion: An Employee-Inventor's Second Bite At The Apple, Richard A. Kamprath

Chicago-Kent Journal of Intellectual Property

In an attempt to more fully compensate employee-inventors without harming the return on investment of employers, a patent reversion is proposed similar to that already in place in copyright law. In Section II, the background of the relationship between employer and employee-inventor will be discussed in terms of patent rights. This section will outline the problems inherent in the pre-assignment status quo of these rights from employees to employers. Section III will begin with Part A, which is a review of previously proposed solutions to the under-compensation of employee-inventors. The second part of Section III will discuss the proposed patent …

Fair Use And The Quotation Of Song Lyrics In Fiction, Stephen B. Harrison

Chicago-Kent Journal of Intellectual Property

No abstract provided.

The Plumpy'nut Predicament: Is Compulsory Licensing A Solution?, Umar R. Bakhsh

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Appendix: What Is Transformative? An Explanatory Synthesis Of The Convergence Of Transformation And Predominant Purpose In Copyright Fair Use Law, Michael D. Murray

Chicago-Kent Journal of Intellectual Property

The transformative test has risen to the top of the agenda of the copyright academic community with no less than two major studies of copyright fair use and the impact of the transformative test released in 2011 by Professors Matthew Sag and Neil Netanel that follow up on three recent comprehensive studies of copyright fair use published since 2008. The lessons learned from these two 2011 statistical studies are significant, in that both studies confirm the importance of the transformative test in terms of its application by the courts as the dominant test of fair use and in the observation …

What Is Transformative? An Explanatory Synthesis Of The Convergence Of Transformation And Predominant Purpose In Copyright Fair Use Law, Michael D. Murray

Chicago-Kent Journal of Intellectual Property

Two recent statistical studies confirm that a court finding of “transformation” in a copyright fair use claim virtually assures a finding that the use is fair. This Article analyzes the entire body of United States Supreme Court and United States Courts of Appeals case law applying the transformative test in copyright fair use cases to present two points: first, that the transformative test modifies the first sentence of 17 U.S.C. § 107 — in particular, the terms, “the fair use of a copyrighted work” — rather than simply factor one of the four-factor test; second, in implementing the transformative test, …

Do Bad Things Happen When Works Enter The Public Domain?: Empirical Tests Of Copyright Term Extension (With P. Heald), Christopher J. Buccafusco

All Faculty Scholarship

The international debate over copyright term extension for existing works turns on the validity of three empirical assertions about what happens to works when they fall into the public domain. Our study of the market for audio books and a related human subjects experiment suggest that all three assertions are suspect. We demonstrate that audio books made from public domain bestsellers (1913-22) are significantly more available than those made from copyrighted bestsellers (1923-32). We also demonstrate that recordings of public domain and copyrighted books are of equal quality. While a low quality recording seems to lower a listener's valuation of …

Making Sense Of Intellectual Property Law, Christopher J. Buccafusco

All Faculty Scholarship

Intellectual property (IP) scholars have long struggled to explain the boundaries of and differences between copyright and patent law. This Article proposes a novel explanation: copyright and patent can be fruitfully understood as establishing a dichotomy between the different human senses. Copyright has bracketed works addressed to the senses of sight and hearing, and it treats products appealing to touch, taste, and smell as functional and, thus, uncopyrightable. To the extent the latter receive IP protection, it is through the utility patent regime. The Article begins by establishing this descriptive proposition, and it shows how some of the most contested …

Valuing Attribution And Publication In Intellectual Property (With C. Sprigman And Z. Burns), Christopher J. Buccafusco

All Faculty Scholarship

This is the third in a series of articles focusing on the experimental economics of intellectual property. In earlier work, we have experimentally studied the ways in which creators assign monetary value to the things that they create. That research has suggested that creators are subject to a systematic bias that leads them to overvalue their work. This bias, which we have called the 'creativity effect,' potentially results in inefficient markets in IP, because creators may be unwilling to license their works for rational amounts.

Our prior research, however, like American IP law itself, focused exclusively on the monetary value …

Well-Being Analysis Vs. Cost-Benefit Analysis (With J. Bronsteen & J. Masur) (Symposium), Christopher J. Buccafusco

All Faculty Scholarship

Cost-benefit analysis is the primary tool used by policymakers to inform administrative decisionmaking. Yet its methodology of converting preferences (often hypothetical ones) into dollar figures, then using those dollar figures as proxies for quality of life, creates systemic errors so large as to deprive the tool of value. These problems have been lamented by many scholars, and recent calls have gone out from world leaders and prominent economists to find an alternative analytical device that would measure quality of life more directly. This Article proposes well-being analysis (WBA) as that alternative. Relying on data from the field of hedonic psychology …

Digital Originality, Edward Lee

All Faculty Scholarship

This Article examines the doctrine of originality in U.S. copyright law and proposes a reconfigured, three-part test that can better analyze issues of first impression involving works created with new digital technologies. The proposed test, encapsulated by the concept of digital originality, provides much needed guidance to courts to address the increasing complexities of digital creations in the twenty-first century.