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Articles 1 - 30 of 74
Full-Text Articles in Law
China's New Copyright Law Reforms: A Comparative Analysis, Shruti Rana, Garland Rowland
China's New Copyright Law Reforms: A Comparative Analysis, Shruti Rana, Garland Rowland
Shruti Rana
Nations and businesses around the globe have been battling over copyright protection rules, with industrialized nations pressuring developing nations to adopt Western-style copyright regimes. These battles have escalated as copyright piracy grows and developing nations struggle to formulate laws that will protect their own intellectual properties as well as those of industrialized nations. China is at the cutting edge of these debates; in the summer of 2012, China released transformative new proposals to modify its copyright rules. This Article, which we believe is the first in-depth academic piece analyzing China’s new reforms, critiques China’s new proposals and argues that China …
The Look For Less: A Survey Of Intellectual Property Protections In The Fashion Industry, Nicole Giambarrese
The Look For Less: A Survey Of Intellectual Property Protections In The Fashion Industry, Nicole Giambarrese
Touro Law Review
Currently, there are no copyright protections for fashion designs in the United States. Proposed legislation that would provide such protection has been sitting in Congress for two years. Further, the Lanham Trademark Act only protects the origin of products, such as logos and trademarks. Even with the current available trademark protection, fashion houses, such as Louis Vuitton, and luxury jewelry firms, such as Tiffany & Company, have seen the Second Circuit make it more difficult to assert the protection. This increasing difficulty is due to a fear of overextending monopolies and taking an affirmative stance on who has the burden …
Toward A Lockean Moral Justification Of Legal Protection Of Intellectual Property, Kenneth Einar Himma
Toward A Lockean Moral Justification Of Legal Protection Of Intellectual Property, Kenneth Einar Himma
San Diego Law Review
This Article attempts to provide the beginnings of a viable moral justification for recognizing and providing legal protection of intellectual property. The argument follows a line of arguments that is fairly characterized as “inspired” by John Locke’s attempt to justify legal protection of what he took to be a natural, objective, moral right to material property. That is to say, it is Lockean in spirit in the following sense: Locke grounds his argument for original acquisition in the idea that a person is justified in acquiring something from the commons in virtue of an investment he makes of something that …
Managing The Intellectual Property Sprawl, Shubha Ghosh
Managing The Intellectual Property Sprawl, Shubha Ghosh
San Diego Law Review
Professor Merges, despite the centrality of creative persons to his argument, organizes a set of ideas that are conducive to refocusing intellectual property law on users. I present this user-focused argument in this Article through the following five Parts. Part II explains my suggested approach to questions about the design of intellectual property law—an approach based on the new institutional economics and the work of Ronald Coase. Part II also addresses objections to this approach. Part III identifies the user in Professor Merges’s high-level principles grounded in Locke, Kant, and Rawls. Part IV follows this argument with a closer examination …
On Cowbells In Rock Anthems (And Property In Ip): A Review Of Justifying Intellectual Property, Eric R. Claeys
On Cowbells In Rock Anthems (And Property In Ip): A Review Of Justifying Intellectual Property, Eric R. Claeys
San Diego Law Review
I am going to start this Article with two confessions. First, when I was fourteen, my favorite rock song was (Don’t Fear) The Reaper, by Blue Oyster Cult. Second, one of my favorite Saturday Night Live (SNL) sketches is from the 2000 season, “Behind the Music: Blue Oyster Cult.” The sketch is a tribute in memory of Gene Frenkle, the member of Blue Oyster Cult who played the cowbell on (Don’t Fear) The Reaper. The SNL sketch purports to explain how the cowbell made it onto the studio recording. In the sketch, members of the regular SNL cast pretend to …
A Lockean Theory Of Intellectual Property Revisited, Adam D. Moore
A Lockean Theory Of Intellectual Property Revisited, Adam D. Moore
San Diego Law Review
The primary, and perhaps sole, function of government according to Locke was to secure and protect the lives, liberties, and property of individuals who consented, explicitly or tacitly, to a specific political union. The question that I will address in this Article, and one that I took up over fifteen years ago, is: should we consider intellectual works to be the proper subjects of Lockean property claims? My answer then and now is “yes,” with the acknowledgement that such a view may require substantial revisions to Anglo-American systems of intellectual property. I will argue that intellectual property rights are no …
Traditional Knowledge, Cultural Expression, And The Siren’S Call Of Property, Justin Hughes
Traditional Knowledge, Cultural Expression, And The Siren’S Call Of Property, Justin Hughes
San Diego Law Review
Discussions on international legal norms for the protection of TK/TCE have, in their contemporary form, been ongoing since the late 1990s. In that time, our understanding of key issues for a workable system—subject matter, beneficiaries, rights, or protections—have advanced little, if at all. Indeed, as Michael Brown has observed, “vexing questions of origins and boundaries . . . are commonly swept under the rug in public discussions.” Yet even if all those questions were settled, we also need a clear justification or justifications for a new form of intellectual property on the world stage.
The Need And Justification For A General Competition-Oriented Compulsory Licensing Regime, Kung-Chung Liu
The Need And Justification For A General Competition-Oriented Compulsory Licensing Regime, Kung-Chung Liu
Research Collection Yong Pung How School Of Law
There seems to be little or no discussion about the need of and justification for a general compulsory licensing that could be applicable to all IP laws. This author has previously argued, by referencing to competition law, in 2008 that it is paramount for the WTO to revise the TRIPS Agreement, so as to include substantive grounds for granting compulsory patent licenses. In so doing, the preservation of competition should be factored in as one of the public policy objectives. As a follow-up study this paper takes an IP-internal approach (therefore will only consult competition law in a very limited …
Musical Copyright Infringement: The Replacement Of Arnstein V. Porter - A More Comprehensive Use Of Expert Testimony And The Implementation Of An "Actual Audience" Test , Michelle V. Francis
Musical Copyright Infringement: The Replacement Of Arnstein V. Porter - A More Comprehensive Use Of Expert Testimony And The Implementation Of An "Actual Audience" Test , Michelle V. Francis
Pepperdine Law Review
No abstract provided.
Changing Places: A New Role For Creators In The Digital World, Rodolfo C. Rivas Rea Esq., Maria Alejandra Lopez Garcia Esq.
Changing Places: A New Role For Creators In The Digital World, Rodolfo C. Rivas Rea Esq., Maria Alejandra Lopez Garcia Esq.
Rodolfo C. Rivas
The authors provide a brief overview of the author’s role in exploiting their creations and how new technologies have made authors and publishers explore new business models. In the article, the authors take a look at the innovative business models implemented by J.K. Rowling, Stephen King, Radiohead and Frank Ocean amongst others./////////////////////////////////////////////////// Los autores proporcionan una breve descripción de la función del autor en la explotación de sus creaciones y cómo las nuevas tecnologías han obligado a los autores y editores explorar nuevos modelos de negocio. En el artículo, los autores echan un vistazo a los modelos de negocio innovadores …
Competition And Innovation In Copyright And The Dmca, Herbert J. Hovenkamp
Competition And Innovation In Copyright And The Dmca, Herbert J. Hovenkamp
All Faculty Scholarship
This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters …
The Inalienable Right Of Publicity, Jennifer E. Rothman
The Inalienable Right Of Publicity, Jennifer E. Rothman
All Faculty Scholarship
This article challenges the conventional wisdom that the right of publicity is universally and uncontroversially alienable. Courts and scholars have routinely described the right as a freely transferable property right, akin to patents or copyrights. Despite such broad claims of unfettered alienability, courts have limited the transferability of publicity rights in a variety of instances. No one has developed a robust account of why such limits should exist or what their contours should be. This article remedies this omission and concludes that the right of publicity must have significantly limited alienability to protect the rights of individuals to control the …
The Elusive Role Of The Specification In Patent Claim Construction, Mohammad Nilforoush
The Elusive Role Of The Specification In Patent Claim Construction, Mohammad Nilforoush
Intellectual Property Brief
No abstract provided.
11th Annual Conference On Recent Developments In Intellectual Property Law And Policy, Marc Greenberg, William T. Gallagher, Chester S. Chuang
11th Annual Conference On Recent Developments In Intellectual Property Law And Policy, Marc Greenberg, William T. Gallagher, Chester S. Chuang
Intellectual Property Law
No abstract provided.
Transcript: Opening Remarks, Peter Jaszi
Acta And Access To Medicines, Sean Flynn, Bijan Madhani
Acta And Access To Medicines, Sean Flynn, Bijan Madhani
Sean Flynn
The Greens/EFA Internet Core Group in the European Parliament, and a collection of its individual members, commissioned this analysis of potential impacts of the Anti-Counterfeiting Trade Agreement (ACTA) on access to medicines in developing countries.” On the whole, ACTA negotiators created an agreement that shifts international “hard law” rules and “soft law” encouragements toward making enforcement of intellectual property rights in courts, at borders, by the government and by private parties easier, less costly, and more “deterrent” in the level of penalties. In doing so, it increases the risks and consequences of wrongful searches, seizures, lawsuits and other enforcement actions …
Imagining The Law, Christine Farley
Imagining The Law, Christine Farley
Christine Haight Farley
Law’s relations to art--to its creation, its production, and dissemination, its restriction as well as to commercial and contractual agreements about art works—are as multiform and complex as the category of art itself. Acknowledging that there is no discrete body of law that governs art, the author defines art law as “the survey of legal issues raised by art, artist, and the art world” and surveys four central themes: the law as art, the law of art, the law of creativity, and the collision of art and law. Any legal dispute about art usually evokes a plea for special legal …
“One For All: The Problem Of Uniformity Cost In Intellectual Property Law.” American University Law Review 55, No.4 (May 2006): 845-900., Michael W. Carroll
“One For All: The Problem Of Uniformity Cost In Intellectual Property Law.” American University Law Review 55, No.4 (May 2006): 845-900., Michael W. Carroll
Michael W. Carroll
Intellectual property law protects the owner of each patented invention or copyrighted work of authorship with a largely uniform set of exclusive rights. In the modern context, it is clear that innovators' needs for intellectual property protection vary substantially across industries and among types of innovation. Applying a socially costly, uniform solution to problems of differing magnitudes means that the law necessarily imposes uniformity cost by underprotecting those who invest in certain costly innovations and overprotecting those with low innovation costs or access to alternative appropriability mechanisms. This Article argues that reducing uniformity cost is the central problem for intellectual …
Neil Gaiman Says Internet Piracy Is “People Lending Books”, Mark Tratos
Neil Gaiman Says Internet Piracy Is “People Lending Books”, Mark Tratos
Intellectual Property Brief
No abstract provided.
Conflicts At The Intersection Of Acta & Human Rights: How The Anti-Counterfeiting Trade Agreement Violates The Right To Take Part In Cultural Life, Robert Ellis
Intellectual Property Brief
No abstract provided.
Value Divergence In Global Intellectual Property Law, J. Janewa Oseitutu
Value Divergence In Global Intellectual Property Law, J. Janewa Oseitutu
Indiana Law Journal
It is a challenge for the United States to adequately protect the interests of its intellectual property industries. It is particularly difficult to effectively achieve this objective when the interests of the United States are not in line with the social, cultural, and economic goals of other nations. Yet, as a major exporter of intellectual property protected goods, the United States has an interest in negotiating effective international intellectual property agreements that are perceived to be legitimate by the state signatories and their constituents. Focusing on value divergence, this Article contributes to the growing body of literature on developing a …
Ip Protection Of Fashion Design: To Be Or Not To Be, That Is The Question, Xinbo Li
Ip Protection Of Fashion Design: To Be Or Not To Be, That Is The Question, Xinbo Li
IP Theory
No abstract provided.
Bio-Cultural Knowledge And The Challenges Of Intellectual Property Rights Regimes For African Development, Ikechi Mgbeoji
Bio-Cultural Knowledge And The Challenges Of Intellectual Property Rights Regimes For African Development, Ikechi Mgbeoji
Dalhousie Law Journal
African states have, since the colonial encounter, been part of the international regimes on intellectual property rights. Formal accession to various treaties and conventions on intellectual property rights instruments should not be mistaken for actual internalization of the policies, structures and norms required for reaping the promised benefits of participation in such regimes. There is ample evidence showing that most African states do not have the requisite structures for fruitful engagement with international intellectual property rights regimes. Until this anomaly is rectified, African states' engagement with international intellectual property regimes will remain structurally flawed and inimical to the human development …
Untold Stories In South Africa: Creative Consequences Of The Rights Clearance Culture For Documentary Filmmakers, Sean M. Flynn, Peter A. Jaszi
Untold Stories In South Africa: Creative Consequences Of The Rights Clearance Culture For Documentary Filmmakers, Sean M. Flynn, Peter A. Jaszi
Peter Jaszi
This report summarizes research on the perceptions of South African documentary filmmakers about copyright clearance requirements and the effect of such requirements on their work. This work was performed in the context of a larger project exploring how lessons learned from “best practices” projects with documentary filmmakers in the U.S. can help their counterparts in other countries identify and overcome barriers to effective film making posed by escalating copyright clearance requirements.
Trademarks And Geographical Indications: Conflict Or Coexistence?, Melissa A. Loucks
Trademarks And Geographical Indications: Conflict Or Coexistence?, Melissa A. Loucks
Electronic Thesis and Dissertation Repository
Both trademarks and geographical indications are legal devices which regulate communication to markets about a product. Trademarks indicate the commercial origin of a good or service while geographical indications signal the geographic origin. Both tools also legally grant exclusive rights to certain uses of a word or symbol. Tension arises when the tools overlap on the same subject matter. The thesis asks: is coexistence between the devices in the TRIPS Agreement possible? Are the concepts of trademarks and geographical indications related? If so, how? If not, how? Does the marketing literature of business recognize both registered trademarks and geographical indications …
Cross-Border Ip Infringement: Patents, Marketa Trimble
Cross-Border Ip Infringement: Patents, Marketa Trimble
Boyd Briefs / Road Scholars
Professor Marketa Trimble presented these materials at the CASRIP 20th Anniversary / IP LLM 10th Anniversary IP-across Topic Scholarship Conference on July 28, 2012.
Genes 101: Are Human Genes Patentable Subject Matter?, Andrew Bowman
Genes 101: Are Human Genes Patentable Subject Matter?, Andrew Bowman
Law Student Publications
This comment proposes a totality-of-the-circumstances approach to analyzing biological molecules under § 101 such that both the structure and its information is examined. Part II of this note reviews relevant precedent in patent law. Part III analyzes the Federal Circuit's Myriad decision, and Part IV explains the potential effects of the recent Supreme Court decision Mayo Collaborative Services v. Prometheus Laboratories. Finally, in Part V, the patent eligibility of human genes is examined. Analyzing this issue under the proposed totality-of-the-circumstances approach, this article concludes that isolated human genes are not patentable.
Protecting Private Intellectual Property From Government Intrusion: Revisiting Smithkline And The Case For Just Compensation, John C. O'Quinn
Protecting Private Intellectual Property From Government Intrusion: Revisiting Smithkline And The Case For Just Compensation, John C. O'Quinn
Pepperdine Law Review
No abstract provided.
Rules Versus Standards: Competing Notions Of Inconsistency Robustness In Patent Law, David S. Olson, Stefania Fusco
Rules Versus Standards: Competing Notions Of Inconsistency Robustness In Patent Law, David S. Olson, Stefania Fusco
David S. Olson
This Article applies a new paradigm from the field of computer science—inconsistency robustness (IR)—in order to analyze the competing ways in which the Supreme Court and Federal Circuit craft patent law standards and rules. The IR paradigm is a shift from the previous paradigm of inconsistency elimination. The new IR paradigm recognizes that modern, complex information systems must perform notwithstanding persistent and continuous inconsistencies. The focus on IR encourages system designers to recognize the reality of persistent inconsistency when building robust systems that can perform reliably. Legal systems regularly process a great deal of complexity and inconsistency, and thus, by …
Trademark And Copyright Enforcement In The Shadow Of Ip Law, William T. Gallagher
Trademark And Copyright Enforcement In The Shadow Of Ip Law, William T. Gallagher
Publications
In recent years, as Congress has created new intellectual property (IP) rights and courts have often interpreted those rights broadly, legal scholars have frequently decried the expanded scope of protection afforded IP owners in most substantive areas of IP law. According to this critique, the over-expansion of IP rights throughout the past two decades harms competition, chills free speech, and diminishes the public domain as increasingly broad areas of social life are brought within the scope of strong IP protection. While this over-expansion theory reflects an important-indeed, foundationalpolicy debate concerning the proper balance between IP owners' rights and the public's …