Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- University of Georgia School of Law (41)
- The University of Akron (20)
- Chicago-Kent College of Law (12)
- Selected Works (10)
- Fordham Law School (6)
-
- Duke Law (5)
- Mitchell Hamline School of Law (5)
- University of Kentucky (5)
- University of Cincinnati College of Law (4)
- Boston University School of Law (3)
- Brooklyn Law School (3)
- Touro University Jacob D. Fuchsberg Law Center (3)
- University of Michigan Law School (3)
- University of Nebraska - Lincoln (3)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (3)
- University of New Hampshire (3)
- University of Pennsylvania Carey Law School (3)
- University of Richmond (3)
- Vanderbilt University Law School (3)
- Columbia Law School (2)
- Cornell University Law School (2)
- Loyola Marymount University and Loyola Law School (2)
- Marquette University Law School (2)
- Pace University (2)
- SelectedWorks (2)
- St. John's University School of Law (2)
- University of Colorado Law School (2)
- American University Washington College of Law (1)
- Brigham Young University Law School (1)
- Case Western Reserve University School of Law (1)
- Publication
-
- Journal of Intellectual Property Law (41)
- Akron Intellectual Property Journal (20)
- Chicago-Kent Journal of Intellectual Property (12)
- Faculty Scholarship (10)
- Fordham Intellectual Property, Media and Entertainment Law Journal (5)
-
- Cybaris® (4)
- Law Faculty Scholarly Articles (4)
- All Faculty Scholarship (3)
- Carys Craig (3)
- Faculty Publications (3)
- Law Faculty Scholarship (3)
- Sonia Katyal (3)
- Touro Law Review (3)
- Articles (2)
- Brooklyn Law Review (2)
- Cornell Law Faculty Publications (2)
- Faculty Articles (2)
- Jessica Litman (2)
- Loyola of Los Angeles Entertainment Law Review (2)
- Marquette Intellectual Property Law Review (2)
- Michigan Telecommunications & Technology Law Review (2)
- Nevada Law Journal (2)
- The University of Cincinnati Intellectual Property and Computer Law Journal (2)
- University of Nebraska-Lincoln Libraries: Conference Presentations and Speeches (2)
- Vanderbilt Journal of Entertainment & Technology Law (2)
- All Faculty Publications (1)
- Articles in Law Reviews & Other Academic Journals (1)
- Articles, Book Chapters, & Popular Press (1)
- Brooklyn Journal of International Law (1)
- Copyright, Fair Use, Scholarly Communication, etc. (1)
- Publication Type
Articles 151 - 177 of 177
Full-Text Articles in Law
The Copy Process, Joseph P. Fishman
The Copy Process, Joseph P. Fishman
Vanderbilt Law School Faculty Publications
There’s more than one way to copy. The process of copying can be laborious or easy, expensive or cheap, educative or unenriching. But the two intellectual property regimes that make copying an element of liability, copyright and trade secrecy, approach these distinctions differently. Copyright conflates them. Infringement doctrine considers all copying processes equally suspect, asking only whether the resulting product is substantially similar to the protected work. By contrast, trade secrecy asks not only whether but also how the defendant copied. It limits liability to those who appropriate information through means that the law deems improper.
This Article argues that …
Reconsidering Copyright’S Constitutionality, Graham J. Reynolds
Reconsidering Copyright’S Constitutionality, Graham J. Reynolds
Osgoode Hall Law Journal
In 1996, in Compagnie Générale des Établissements Michelin – Michelin & Cie v National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) [Michelin], Justice Teitelbaum of the Federal Court (Trial Division) held both that specific provisions of the Copyright Act did not infringe the right to freedom of expression as protected under the Canadian Charter of Rights and Freedoms and that, even if they did, these provisions could be justified under s 1 of the Charter. Since Michelin, these conclusions have been treated by Canadian courts as settled. The purpose of this paper is to challenge these conclusions …
Centering Education In The Next Great Copyright Act: A Response To Professor Jaszi, Deidre Keller
Centering Education In The Next Great Copyright Act: A Response To Professor Jaszi, Deidre Keller
Journal Publications
Rather, as the Georgia State decisions exemplify, educators and educational institutions are treated like every other unlicensed user of copyrighted materials; they are expected to prove that each use is a fair use firmly within the confines of existing fair use jurisprudence. Jaszi further asserts that endeavoring to change the copy-right statute is a lost cause and offers, as the least bad alternative, the possibility of educators articulating their uses as transformative and, therefore, well within the recognized parameters of the fair use doctrine. This piece responds to Professor Jaszi’s article. Part II briefly analyzes the Georgia State decisions out …
Defining The Press Clause: The End Of Hot News And The Attempt To Save Traditional Media, Adam Tragone
Defining The Press Clause: The End Of Hot News And The Attempt To Save Traditional Media, Adam Tragone
Chicago-Kent Journal of Intellectual Property
No abstract provided.
Copyrights And Trademarks In Cyberspace: A Legal And Economic Analysis, Georgios I. Zekos
Copyrights And Trademarks In Cyberspace: A Legal And Economic Analysis, Georgios I. Zekos
Chicago-Kent Journal of Intellectual Property
No abstract provided.
Copyright For Literate Robots, James Grimmelmann
Copyright For Literate Robots, James Grimmelmann
Cornell Law Faculty Publications
Almost by accident, copyright has concluded that copyright law is for humans only: reading performed by computers doesn't count as infringement. Conceptually, this makes sense: copyright's ideal of romantic readership involves humans writing for other humans. But in an age when more and more manipulation of copyrighted works is carried out by automated processes, this split between human reading (infringement) and robotic reading (exempt) has odd consequences and creates its own tendencies toward a copyright system in which humans occupy a surprisingly peripheral place. This essay describes the shifts in fair use law that brought us here and reflects on …
There's No Such Thing As A Computer-Authored Work - And It's A Good Thing, Too, James Grimmelmann
There's No Such Thing As A Computer-Authored Work - And It's A Good Thing, Too, James Grimmelmann
Cornell Law Faculty Publications
Treating computers as authors for copyright purposes is a non-solution to a non-problem. It is a non-solution because unless and until computer programs can qualify as persons in life and law, it does no practical good to call them "authors" when someone else will end up owning the copyright anyway. And it responds to a non-problem because there is nothing actually distinctive about computer-generated works.
There are five plausible ways in which computer-generated works might be considered meaningfully different from human-generated works: (1) they are embedded in digital copies, (2) people create them using computers rather than by hand, (3) …
Rectifying Fair Use After Cariou V. Prince: Reviving The Forgotten Statutory Text And Requiring That Unauthorized Copying Be Justified, Rather Than Merely “Transformative”, Daniel J. Brooks
Chicago-Kent Journal of Intellectual Property
No abstract provided.
Multiple Intellectual Property Damage Complications As In Apple V Samsung? Try Using Excel, W. Lesser
Multiple Intellectual Property Damage Complications As In Apple V Samsung? Try Using Excel, W. Lesser
Chicago-Kent Journal of Intellectual Property
No abstract provided.
Testing Tarnishment In Trademark And Copyright Law: The Effect Of Pornographic Versions Of Protected Marks And Works, Christopher Buccafusco, Paul J. Heald, Wen Bu
Testing Tarnishment In Trademark And Copyright Law: The Effect Of Pornographic Versions Of Protected Marks And Works, Christopher Buccafusco, Paul J. Heald, Wen Bu
Faculty Scholarship
Federal and state law both provide a cause of action against inappropriate and unauthorized uses that ‘tarnish’ a trademark. Copyright owners also articulate fears of ‘tarnishing’ uses of their works in their arguments against fair use and for copyright term extension. The validity of these concerns rests on an empirically testable hypothesis about how consumers respond to inappropriate unauthorized uses of works. In particular, the tarnishment hypothesis assumes that consumers who are exposed to inappropriate uses of a work will find the tarnished work less valuable afterwards. This Article presents two experimental tests of the tarnishment hypothesis, focusing on unauthorized …
The Author Was Not An Author: The Copyright Interests Of Photographic Subjects From Wilde To Garcia, Eva Subotnik
The Author Was Not An Author: The Copyright Interests Of Photographic Subjects From Wilde To Garcia, Eva Subotnik
Faculty Publications
Toward the end of his dissent in Garcia v. Google, Judge Alex Kozinski remarked that “[w]hen modern works, such as films or plays, are produced, contributors will often create separate, copyrightable works as part of the process.” Judge Kozinski’s characterization of plays (or even films) as “modern works” opens the door to an examination of that claim with respect to another genre of modern work: the photograph. This essay focuses on the treatment of claimed authorial contributions by photographic subjects to the photographs in which they are portrayed. It traces the analysis of this issue from the early photography cases …
Centering Education In The Next Great Copyright Act: A Response To Professor Jaszi, Deidre A. Keller, Anjali Vats
Centering Education In The Next Great Copyright Act: A Response To Professor Jaszi, Deidre A. Keller, Anjali Vats
Articles
This article engages the recent Georgia State litigation regarding uses copyrighted content by teachers and seeks to place it within the larger context of the current state of affairs in education and in copyright policy making. In a recent article, Professor Peter Jaszi argued that educators need to begin to articulate the ways in which their uses are transformative in order to increase their chances of winning copyright infringement suits on the basis of fair use. While Jaszi’s point that educators need to better articulate their rights to use copyrighted content is well-taken, we argue that the appropriate audience educators …
Plagiarism Is Not A Crime, Brian L. Frye
Plagiarism Is Not A Crime, Brian L. Frye
Law Faculty Scholarly Articles
Copyright infringement and plagiarism are related but distinct concepts. Copyright prohibits certain uses of original works of authorship without permission. Plagiarism norms prohibit copying certain expressions, facts, and ideas without attribution. The prevailing theory of copyright is the economic theory, which holds that copyright is justified because it is economically efficient. This article considers whether academic plagiarism norms are economically efficient. It concludes that academic plagiarism norms prohibiting non-copyright infringing plagiarism are not efficient and should be ignored.
Undetected Conflict-Of-Laws Problems In Cross-Border Online Copyright Infringement Cases, Marketa Trimble
Undetected Conflict-Of-Laws Problems In Cross-Border Online Copyright Infringement Cases, Marketa Trimble
Scholarly Works
This article provides and analyzes data on copyright infringement cases filed in U.S. federal district courts in 2013; it focuses on infringement cases involving activity on the internet and discusses actual and potential conflict-of-laws issues that the cases raised or could have raised. The article complements the report entitled "Private International Law Issues in Online Intellectual Property Infringement Disputes with Cross-Border Elements: An Analysis of National Approaches" (the "Report"), which was published by the World Intellectual Property Organization in September 2015. In the Report its author, Professor Andrew F. Christie, discusses his empirical findings about the intersection of intellectual property …
Copyright’S Not So Little Secret: The Orphan Works Problem And Proposed Orphan Works Legislation, Aaron C. Young
Copyright’S Not So Little Secret: The Orphan Works Problem And Proposed Orphan Works Legislation, Aaron C. Young
Cybaris®
No abstract provided.
Video Games And Intellectual Property: Similarities, Differences, And A New Approach To Protection, John Kuehl
Video Games And Intellectual Property: Similarities, Differences, And A New Approach To Protection, John Kuehl
Cybaris®
No abstract provided.
Beyond Eureka: What Creators Want (Freedom, Credit, And Audiences) And How Intellectual Property Can Better Give It To Them (By Supporting, Sharing, Licensing, And Attribution), Colleen Chien
Michigan Law Review
In the theater of the courtroom or the rough and tumble arena of intellectual property policymaking, the day-to-day lives of creators are rarely presented. We often instead see one-dimensional vignettes, for example, “the new artist or band that has just released their [sic] first single and will not be paid for its success,” described on Taylor Swift’s Tumblr last summer when she initially withdrew from Apple’s music streaming service. While instructive, this description leaves out that Swift and other artists have long relied on “free play” mediums like radio and, more recently, YouTube to develop, not cannibalize, their audiences and …
The Limits Of Statutory Interpretation: Towards Explicit Engagement, By The Supreme Court Of Canada, With The Charter Right To Freedom Of Expression In The Context Of Copyright, Graham Reynolds
All Faculty Publications
In its post-2002 copyright jurisprudence, the Supreme Court of Canada has clarified that the Copyright Act grants a significant degree of latitude to non-copyright owning parties to express themselves using copyrighted works. This outcome is attributable neither to the SCC having interpreted provisions of the Copyright Act according to Charter values nor to the SCC having weighed provisions of the Copyright Act against the section 2(b) right to freedom of expression. Rather, it has resulted from the SCC interpreting provisions of the Copyright Act through the lens of the purpose of copyright, as re-articulated by the SCC. The author argues …
Facilitating Competition By Remedial Regulation, Kristelia A. García
Facilitating Competition By Remedial Regulation, Kristelia A. García
Publications
In music licensing, powerful music publishers have begun—for the first time ever— to withdraw their digital copyrights from the collectives that license those rights, in order to negotiate considerably higher rates in private deals. At the beginning of the year, two of these publishers commanded a private royalty rate nearly twice that of the going collective rate. This result could be seen as a coup for the free market: Constrained by consent decrees and conflicting interests, collectives are simply not able to establish and enforce a true market rate in the new, digital age. This could also be seen as …
The Other Side Of Garcia:The Right Of Publicity And Copyright Preemption, Jennifer E. Rothman
The Other Side Of Garcia:The Right Of Publicity And Copyright Preemption, Jennifer E. Rothman
All Faculty Scholarship
This essay is adapted from a talk that I gave on October 2, 2015 at Columbia Law School’s annual Kernochan Center Symposium. The all-day conference focused on Copyright Outside the Box. The essay considers the aftermath of Garcia v. Google, Inc., and the Ninth Circuit’s suggestion in that case that Garcia might have a right of publicity claim against the filmmakers, even though her copyright claim failed.
The essay provides a partial update of my prior work, Copyright Preemption and the Right of Publicity, 36 U.C. Davis L. Rev. 199 (2002), and suggests that despite numerous cases over …
The Dual-Grant Theory Of Fair Use, Abraham Bell, Gideon Parchomovsky
The Dual-Grant Theory Of Fair Use, Abraham Bell, Gideon Parchomovsky
All Faculty Scholarship
Fair use is one of modern law's most fascinating and troubling doctrines. It is amorphous and vague, and notoriously difficult to apply. It is, at the same time, vitally important in copyright and perhaps the most frequently raised and litigated issue in the law of intellectual property.
This article offers a novel theory of fair use that provides both a better understanding of the underlying principles and better tools for applying the doctrine.
In contrast with the dominant understanding of fair use in the literature — that fair use addresses market failure — the article proposes viewing fair use as …
Intellectual Property Law Hybridization, Clark D. Asay
Intellectual Property Law Hybridization, Clark D. Asay
University of Colorado Law Review
Traditionally, patent and copyright laws have been viewed as separate bodies of law with distinct utilitarian goals. Conventional wisdom holds that patent law aims to incentivize the production of inventive ideas, while copyright focuses on protecting the original expression of ideas, but not the underlying ideas themselves. This customary divide between copyright and patent laws finds some support in the distinction between "authors" and "inventors," as well as that between "writings" and "discoveries," in the U.S. Constitution's Intellectual Property Clause. And Congress, courts, and scholars have largely perpetuated the divide in separately enacting, interpreting, and analyzing copyright and patent laws …
Are Engineered Genetic Sequences Copyrightable?: The U.S. Copyright Office Addresses A Matter Of First Impression, Christopher M. Holman, Claes Gustafsson, Andrew W. Torrance
Are Engineered Genetic Sequences Copyrightable?: The U.S. Copyright Office Addresses A Matter Of First Impression, Christopher M. Holman, Claes Gustafsson, Andrew W. Torrance
Faculty Works
In spite of the compelling logic that would support extending copyright to engineered DNA sequences, copyright protection for genetic code has not been legally recognized in the US, or as far as we know anywhere. The Copyright Act is silent on the point, the courts do not appear to have ever addressed the question, and the Copyright Office has taken the position that an engineered genetic sequence is not copyrightable subject matter. In an attempt to advance the conversation, we submitted an engineered DNA sequence to the Copyright Office for registration, and then appealed the Office’s decision refusing to register …
Collaborative Academic Library Digital Collections Post- Cambridge University Press, Hathitrust And Google Decisions On Fair Use, Michelle M. Wu
Collaborative Academic Library Digital Collections Post- Cambridge University Press, Hathitrust And Google Decisions On Fair Use, Michelle M. Wu
Georgetown Law Faculty Publications and Other Works
Academic libraries face numerous stressors as they seek to meet the needs of their users through technological advances while adhering to copyright laws. This paper seeks to explore one specific proposal to balance these interests, the impact of recent decisions on its viability, and the copyright challenges that remain after these decisions.
Berne-Forbidden Formalities And Mass Digitization, Jane C. Ginsburg
Berne-Forbidden Formalities And Mass Digitization, Jane C. Ginsburg
Faculty Scholarship
This Essay addresses the Berne Convention's prohibition on the imposition of "formalities" on the "enjoyment and the exercise" of copyright, and the compatibility with that cornerstone norm of international endeavors to facilitate mass digitization, notably by means of extended collective licensing and "opt-out" authorizations. In the Berne context, "enjoyment" means the existence and scope of rights; "exercise" means their enforcement. Voluntary provision of copyright notice and of title-searching information on a public register of works and transfers of rights is fully consistent with Berne and should be encouraged. But the Berne Convention significantly constrains member states' ability to impose mandatory …
Intellectual Property In News? Why Not?, Sam Ricketson, Jane C. Ginsburg
Intellectual Property In News? Why Not?, Sam Ricketson, Jane C. Ginsburg
Faculty Scholarship
This Chapter addresses arguments for and against property rights in news, from the outset of national law efforts to safeguard the efforts of newsgathers, through the various unsuccessful attempts during the early part of the last century to fashion some form of international protection within the Berne Convention on literary and artistic works and the Paris Convention on industrial property. The Chapter next turns to contemporary endeavors to protect newsgatherers against “news aggregation” by online platforms. It considers the extent to which the aggregated content might be copyrightable, and whether, even if the content is protected, various exceptions set out …
Copyrights, Privacy, And The Blockchain, Tom W. Bell