Law Commons^™

A Fake Right Of Priority Under The Cross-Strait Agreement On Intellectual Property Right Protection And Cooperation, Ping-Hsun Chen

Ping-Hsun Chen

On June 26, 2010, Taiwan and China entered into a “Cross-Strait Agreement on Intellectual Property Rights Cooperation and Protection” (“Cross-Strait IP Agreement”). This Cross-Strait IP Agreement was renowned for China’s admission of a right of priority of Taiwanese patent applications or trademark applications. Under the TRIPS Agreement, China is obligated to admit a right of priority of Taiwanese applications, but it has never fulfilled such obligation. China’s particular concern is that a right of priority is rooted from the Paris Convention which only allows a state to join, so by admitting a right of priority of Taiwanese applications it may …

Copyrightability Of Music Compilations And Playlists: Original And Creative Works Of Authorship?, Marc Fritzsche

Marc Fritzsche

With the digitalization of music and the increasing popularity of online streaming services, people can conveniently create their own playlists and music compilations at will and share them worldwide. Imagine a world in which any selection and arrangement of songs, whether made by you, a DJ, a radio station, or a record label, is protected under the regime of Copyright Law. The result would be a vast amount of copyright infringements when a playlist or compilation gets mimicked by others. Thus far, only the High Court in London, UK, was confronted with this problem, but the parties settled, leaving the …

Dismissing Provenance: The Use Of Procedural Defenses To Bar Claims In Nazi-Looted Art And Securitized Mortgage Litigation, Christian J. Bromley

Christian J Bromley

The litigation surrounding an estimated 650,000 works looted by the Nazis in the Second World War and the millions of securitized mortgages foreclosed in the wake of the Great Recession converge on a fundamental legal principle: who really holds rightful title? Seemingly worlds apart, these separate yet remarkably similar forms of property challenge the American judiciary to allocate property rights between adversaries steadfast in their contention of rightful ownership. The legal fulcrum in this allocation often rests not on the equity or righteousness of either parties’ claim—whether museum versus heir or bank versus former homeowner—but instead on procedural defenses that …

Infringement As Unfair Competition: A Blueprint For Global Governance?, Sean Pager, Eric Priest

Sean Pager

INFRINGEMENT AS UNFAIR COMPETITION: A BLUEPRINT FOR GLOBAL GOVERNANCE?

Sean A. Pager Michigan State University College of Law

Eric Priest University of Oregon School of Law

ABSTRACT

This Article examines a new approach to address persistent regulatory failures in global supply chains. In a series of recent cases, unfair competition actions have been brought in U.S. court against foreign manufacturers who infringe software overseas under the theory that the cost savings from infringement confers an unfair advantage in U.S. markets. While this theory has been advanced in the intellectual property context, the same approach could work to target abuses in …

Traditional Knowledge Rights And Wrongs, Sean Pager

Sean Pager

SourceURL:file://localhost/Users/sean/Documents/Folklore%20TK/Unpacking%20ABSTRACT.doc

Traditional Knowledge Rights and Wrongs

Sean A. Pager, Michigan State University

ABSTRACT

Should the intangible heritage of indigenous people be subject to intellectual property rights? After years of effort, international delegates are poised to complete a pair of ambitious treaties that would accomplish this goal. This Article provides the first detailed analysis and critique of the draft treaties, which provide for exclusive rights in traditional knowledge and cultural expression, respectively. Proponents of such protection often invoke both cultural integrity and economic justice rationales. Yet, these rationales dictate conflicting imperatives. To resolve these conflicts, the Article argues for greater differentiation …

On Climate Change And Cyber Attacks: Leveraging Polycentric Governance To Mitigate Global Collective Action Problems, Scott J. Shackelford

Scott Shackelford

Although the atmosphere and cyberspace are distinct arenas, they share similar problems of overuse, difficulties of enforcement, and the associated challenges of collective inaction and free riders. Moreover, “[m]illions of actors affect the global atmosphere[,]” just as they do the Internet. With weather patterns changing, global sea levels rising, and temperatures set to exceed 1.5 degrees Celsius by 2100, climate change is a problem affecting the entire world, but one in which the benefits are dispersed and the harms are often concentrated. Similarly, much of the cost of cyber attacks is focused in a relatively small number of nations even …

Copyright In Pantomime

Brian L. Frye

Why does the Copyright Act specifically provide for the protection of “pantomimes”? This article shows that the Copyright Act of 1976 amended the subject matter of copyright to include pantomimes simply in order to conform it to the Berne Convention for the Protection of Literary and Artistic Works. It further shows that the Berlin Act of 1909 amended the Berne Convention to provide for copyright protection of “les pantomimes” and “entertainments in dumb show” in order to ensure copyright protection of silent motion pictures. Unfortunately, the original purpose of providing copyright protection to “pantomimes” was forgotten. This Article argues that …

International Trade V. Intellectual Property Lawyers: Globalization And The Brazilian Legal Profession, Vitor M. Dias

Vitor M. Dias

No abstract provided.

Traditional Knowledge Rights And Wrongs, Sean Pager

Sean Pager

Should the intangible heritage of indigenous cultures be subject to intellectual property rights? After years of effort, international delegates are poised to complete a pair of ambitious treaties that would accomplish this goal. This Article provides the first detailed analysis and critique of the draft treaties, which provide for exclusive rights in traditional knowledge and cultural expression, respectively. Proponents of such protection often invoke both cultural integrity and economic justice rationales. Yet, these rationales dictate conflicting imperatives. To resolve these conflicts, the Article argues for greater differentiation between the two draft treaties based on subject matter. Just as copyright and …

Promoting “Academic Entrepreurship” In Europe And The United States: Creating An Intellectual Property Regime To Facilitate The Efficient Transfer Of Knowledge From The Lab To The Patient, Constance Bagley, Christina Tvarno

Constance E. Bagley

In 2014, the European Commission announced the launch of a study of knowledge transfer by public research organizations and other institutes of higher learning “to determine which additional measures might be needed to ensure an optimal flow of knowledge between the public research organisations and business thereby contributing to the development of the knowledge based economy.” As the European Commission has recognized, the EU needs to take action to “unlock the potential of IPRs [intellectual property rights] that lie dormant in universities, research institutes and companies.” This article builds on our earlier work on structuring efficient pharmaceutical public-private partnerships (PPPPs) …

The Right To Read, Lea Shaver

Lea Shaver

Reading – for education and for pleasure – may be framed as a personal indulgence, a moral virtue, or even a civic duty. What are the implications of framing reading as a human right?

Although novel, the rights-based frame finds strong support in international human rights law. The right to read need not be defended as a “new” human right. Rather, it can be located at the intersection of more familiar guarantees. Well-established rights to education, science, culture, and freedom of expression, among others, provide the necessary normative support for recognizing a universal right to read as already implicit in …

Sustainable Cybersecurity: Applying Lessons From The Green Movement To Managing Cyber Attacks, Scott J. Shackelford, Tim Fort

Scott Shackelford

According to Frank Montoya, the U.S. National Counterintelligence Chief, “We’re an information-based society now. Information is everything. That makes . . . company executives, the front line – not the support mechanism, the front line – in [determining] what comes.”[1] Chief Montoya’s remarks underscore the central role played by the private sector in ongoing efforts aimed at enhancing cybersecurity, much like the increasingly vital role firms are playing in fostering sustainability. For example, according to Accenture surveys, the number of managers who consider sustainability to be critical to the future success of their organizations jumped from fifty to more …

Toward A State-Centric Cyber Peace? Analyzing The Role Of National Cybersecurity Strategies In Enhancing Global Cybersecurity, Scott J. Shackelford, Andraz Kastelic

Scott Shackelford

There is a growing consensus that nations bear increasing responsibility for enhancing cybersecurity. A related recent trend has been the adoption of long-term strategic plans to help deter, protect, and defend against cyber threats. These national cybersecurity strategies outline a nation’s core values and goals in the realm of cybersecurity law and policy, from mitigating cybercrime and espionage to preparing for cyber warfare. This Article assesses the notion that nations bear the primary responsibility for managing cyber attacks and mitigating cybercrime by analyzing thirty-four national cybersecurity strategies as a vehicle to discover governance trends that could give rise to customary …

Essential Facilities Doctrine And China’S Anti-Monopoly Law, Yong Huang, Elizabeth Xiao-Ru Wang, Xin Roger Zhang

Elizabeth Xiao-Ru Wang

No abstract provided.

China's Role In Well-Known Marks Protection: It's Now Or Never...Or Dilution, Ava Farshidi

Ava Farshidi

Infringement over the transliteration, converting text to another script, of well-known marks is a major problem for foreign companies in China. If a multinational company does not create its own Chinese transliteration, the Chinese public may create one, which will ultimately affect the company’s ownership of the mark in a different language. Although China became a member of both the Paris Convention for the Protection of Intellectual Property (“Paris Convention”) and the agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”), China has adopted laws that directly conflict with these international guidelines for well-known marks, which has paved the way …

Decoding Bollywood’S Royalty-Sharing Conundrum, Pralika Jain

Pralika Jain

India’s film making community and business got „industry‟ status only in 2011. However, unlike major industries such as telecom and pharmaceutical, the film industry (popularly known as “Bollywood”) is characterised by a major lack of legal rules and institutions to administer them, the problem being most acute in respect of artists. Consequently, the industry is governed completely by market forces whose successful players wield nearly all the bargaining power. It’s almost baffling that a film industry which is currently worlds second in terms of revenue is so thinly regulated.

Copyright And Inequality, Lea Shaver

Lea Shaver

The prevailing theory of copyright law imagines a marketplace efficiently serving up new works to an undifferentiated world of consumers. Yet the reality is that all consumers are not equal. The majority of the world’s people experience copyright law not as a boon to consumer choice, but as a barrier to acquiring knowledge and taking part in cultural life. The resulting patterns of privilege and disadvantage, moreover, reinforce and perpetuate preexisting social divides. Class and culture combine to explain who wins, and who loses, from copyright protection. Along the dimension of class, the insight is that just because new works …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

An Empirical Study: A Socio-Legal Approach To Gauging Attitudes To Intellectual Property Rights, Faris K. Nesheiwat, Mike Adcock

Ferris K Nesheiwat

This article seeks to provide a socio-legal framework for the examination of the attitude of a section of the Jordanian public towards intellectual property rights (IPRs), using copyright protected software as an example; it provides an overview of perceptions of IPRs within an Arabic and predominantly Muslim society, and examines how such perceptions impact attitudes towards abiding with, and enforcement of, IPRs. Through its analytical value and empirical research, this paper fills a void in the availability of reliable empirical data in Jordan as part of the analysis to gauge the impact of intellectual property (IP) laws. A review of …

Anticipating The Storm: Predicting And Preventing Global Technology Conflicts, Sabrina Safrin

Sabrina Safrin

This article helps lay the foundation for a new field of international law — International Law and Technology — and opens novel avenues of inquiry in law and technology and intellectual property more broadly. It analyzes as a starting point why some technologies generate global conflicts while others do not. Technologies that face international resistance can trigger a barrage of international legal responses, ranging from trade bans and WTO disputes to international regulatory regimes and barriers to patenting. Agricultural biotechnology triggered all of these legal flashpoints, while the cellphone, a technology that grew up alongside it, triggered none. Why?

Understanding …

Plain Packaging And The Interpretation Of The Trips Agreement, Daniel J. Gervais, Susy Frankel

Daniel J Gervais

Plain packaging of cigarettes as a way of reducing tobacco consumption and its related health costs and effects raises a number of international trade law issues. The plain packaging measures adopted in Australia impose strict format requirements on word trademarks (such as Marlboro or Camel) and ban the use of figurative marks (colors, logos, etc.). As a result, questions have been raised as to plain packaging’s compatibility with the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). WTO members can validly take measures to protect and promote public health, but in doing so they …

U.S.-Latin American Free Trade Agreements And Access To Medicine, Dominique Lochridge-Gonzales

Dominique Lochridge-Gonzales

U.S.-Latin American Free Trade Agreements and Access to Medicine analyzes the effects of FTA provisions on access to medicine. Access to medicine lies at the heart of the crossroads between the international human right to health and international intellectual property law delineated in TRIPS. True availability of essential medicines to millions of people depends on a balance between the formations of these medicines in the first place (through rewarding innovation) and promulgating rules that allow for practicable access to those medicines. FTAs provide a method for implementing the right to health by fostering practicable access to essential medicines in the …

Internet Control Or Internet Censorship? Comparing The Control Models Of China, Singapore, And The United States To Guide Taiwan’S Choice, Jeffrey Li

Jeffrey Li

Internet censorship generally refers to unjustified online speech scrutiny and control by the government or government-approved measures for Internet control. The danger of Internet censorship is the chilling effect and the substantial harm on free speech, a cornerstone of democracy, in cyberspace. This paper compares China’s blocking and filtering system, the class license system of Singapore, and the government-private partnership model of the United States to identify the features, and pros and cons of each model on the international human rights. By finding lessons from each of the model, this paper suggests Taiwan should remain its current meager internet control …

Social Media And Our Misconceptions Of The Realities, Richard Sanvenero Jr.

Richard Sanvenero Jr.

This article will review the current laws of the expectations of privacy under the two-pronged Katz test, and more specifically other cases that the courts have tried to interpret the test as applicable to social media such as Facebook, Instagram, Twitter, and e-mail. Since there seems to be “no light at the end of the tunnel” with any uniform decision within the courts on the Fourth Amendment protections against search and seizure when there is a reasonable expectation of privacy with social media. This reasonable expectation standard is developed by the users themselves who will allow their rights to be …

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

Michal Pekala

No abstract provided.

E Unum Pluribus: The Limitations On State Law Because Of Foreign Policy Uses Of State Law As A Gap Filler To Meet The International Obligations Of The United States, Llewellyn Gibbons

Llewellyn Joseph Gibbons

Unlike many nations where the ratification of a treaty immediately changes its internal laws, in the United States, unless the language of the treaty is self-executing, Congress must affirmatively change domestic laws to conform to the obligations of the treaty. Increasing, it is a modern trend for the United States to represent in international forums that the United States is in conformity with its international obligations because of state statutes or because of common law court decisions. This article looks whether the foreign policy representations of the United States to other countries (in the context of the international intellectual property …

Indigenus Peoples' Rights At The Intersection Of Human Rights And Intellectual Property Rights, Chidi Oguamanam

Chidi Oguamanam

Exploration of the interface between human rights (HRs) and intellectual property rights (IPRs) is a venture still at a gestational stage. One of the major challenges of that initiative is how to map indigenous peoples’ rights into the discourse. Indigenous peoples’ rights pose significant challenges to both HRs and IPRs jurisprudence. Not only is there a clarity gap over indigenous peoples’ rights in the international bill of rights. Indigenous people’s rights are analogous misfits to any head of conventional HRs as well as conventional IPRs. Overall, indigenous people’s rights are a source of irritation to both HRs and IPRs. The …

Privacy, Transparency & Google's Blurred Glass, Jonathan I. Ezor

Jonathan I. Ezor

No matter the context or jurisdiction, one concept underlies every view of the best practices in data privacy: transparency. The mandate to disclose what personal information is collected, how it is used, and with whom and for what purpose it is shared, is essential to enable informed consent to the collection, along with the other user rights that constitute privacy best practices. Google, which claims to support and offer transparency, is increasingly opaque about its many products and services and the information they collect for it, posing a significant privacy concern.

Intellectual Property, Ag-Biotech And The Right To Adequate Food: A Critical African Perspective, Chidi Oguamanam

Chidi Oguamanam

Recent transformations in agricultural innovations have resulted in the consolidation of intellectual property rights in the agricultural arena resulting in an ongoing struggle for the control of plant genetic resources. For many developing countries, especially in Africa, traditional and communal-based artisanal farmers are the producers of over three quarters of regional food supply. But contemporary techno-legal transformations in agriculture undermine the critical role of these informal actors in a manner that aggravates the state of regional food insecurity in Africa. The aspirations of African countries to implement their obligations in regard to the right to adequate food under the International …

Jurisdiction In Relation To Online Cross-Border Infringements - The Code And The Law, Ulf Maunsbach

Ulf Maunsbach

During recent years the European Court of Justice (ECJ) has proven to be increasingly active in relation to cross-border intellectual property disputes. The relevant cases cover a wide range of issues, from advertisement through use of keywords, to copyright-related issues involved in making protected material available through the Internet. All in all, it might be said that the Internet era has finally reached the Court of Justice. A similar development is visible in Swedish courts. This provides for an unlimited amount of material for further discussion. In this paper I would like to provide a short summary of the recent …