Law Commons^™

The Limits Of International Copyright Exceptions For Developing Countries, Ruth L. Okediji

Vanderbilt Journal of Entertainment & Technology Law

The relationship between intellectual property (IP) protection and economic development is not better understood today than it was five decades ago at the height of the independence era in the Global South. Development indicators in many developing and least-developed countries reflect poorly in precisely the areas that are most closely associated with copyright law's objectives, such as promoting democratic governance, facilitating a robust marketplace of ideas, fostering domestic markets in cultural goods, and improving access to knowledge. Moreover, evidence suggests that copyright law has not been critical to the business models of the creative sectors in leading emerging markets. These …

The Google Book Settlement And The Trips Agreement, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The proposed amended settlement in the Google Book case has been the focus of numerous comments and critiques. This "perspective" reviews the compatibility of the proposed settlement with the TRIPS Agreement and relevant provisions of the Berne Convention that were incorporated into TRIPS, in particular the no-formality rule, the most-favored nation (MFN) clause, national treatment obligations, and the so-called three-step test.

Golan V. Holder: A Look At The Constraints Imposed By The Berne Convention, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

One of the central issues in the Golan v. Holder litigation is the extent to which the United States had flexibility to tailor the protection of existing works that had fallen in the public domain when it joined the Berne Convention. This Essay argues that the Berne Convention obligates the United States as a Berne Union member to provide some degree of protection, but otherwise leaves wide latitude to set the conditions under which works in the public domain receive retroactive copyright protection. The Convention itself does not mandate that any particular level of protection be granted to such works …

The 1909 Copyright Act In International Context, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The passage of the 1909 U.S. Copyright Act was embedded in a significant period of evolution for international copyright law. Just a year before, the Berne Convention had been revised for the second time. This Berlin (1908) Act of the Convention in remembered in particular for the introduction of a broad prohibition against formalities concerning the "exercise and enjoyment" of copyright. 1909 was also just one year before a new copyright bill was brought before the Brit-ish Parliament. This Copyright Act, finally adopted in December 1911 and which entered into force in July 1, 1912, greatly influenced laws in many …

The Protection Of Databases, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

In Parts I and II of this Paper, the author analyzes the legal protection of databases first in international treaties, in particular the Berne Convention and the WTO TRIPS Agreement, and second under national and regional copyright, sui generis, or other (e.g., tort) law in Europe (both the European Directive on the legal protection of databases of 1996, which was under review, and a number of relevant national laws), the United States, and a number of foreign jurisdictions (Australia, Canada, China, Nigeria, Russia, and Singapore). In Part III, the author provides a critical analysis of the effort to expand the …

Cracks In The Great Wall: Why China's Copyright Law Has Failed To Prevent Piracy Of American Movies Within Its Borders, Jordana Cornish

Vanderbilt Journal of Entertainment & Technology Law

This note examines the current state of China's intellectual property rights protection as it relates to movie piracy. Part I examines the different types of film piracy occurring in China and the current severity of the problem for the United States motion picture industry. Part II traces the history of copyright law in China and examines China's commitments under the international copyright treaties it has signed with the United States and other nations through its recent accession to the WTO. Part III discusses why movie piracy in China is still on the rise despite these commitments and highlights why cultural, …

Towards A New Core International Copyright Norm: The Reverse Three-Step Test, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

This paper argues that international copyright treaties, such as the WTO TRIPS Agreement, should no longer be developed as sets of minimum standards with a standardized exception filter, namely the three-step test, but rather include a normative standard for the copyright rights themselves. In seeking harmony between rights and exceptions, and in light of copyright haphazard evolution (by simply adding new rights when a new way of using protected content was invented), a single new core norm is proposed: the reverse three-step test.

Anti-Circumvention: Has Technology's Child Turned Against Its Mother?, Terri B. Cohen

Vanderbilt Journal of Transnational Law

Because its function is to protect and support innovation, copyright has been deemed a child of technology. Yet, as copyright laws increase the scope of protection for copyrighted material, one may wonder when such protection will begin to stymie, rather than encourage, emerging technology. The global trend toward internationalizing copyright protection has resulted in the World Intellectual Property Organization (WIPO) Copyright Treaty, which was intended, in part, to bring international copyright protection into the digital age. The treaty, however, extends traditional copyright protections by including a requirement that member nations implement anti-circumvention provisions into their laws.

Great debate has emerged …

Fragmented Copyright, Fragmented Management: Proposals To Defrag Copyright Management, Daniel J. Gervais, Alana Maurushat

Vanderbilt Law School Faculty Publications

The collective management of copyright in Canada was conceived as a solution to alleviate the problem of inefficiency of individual rights management. Creators could not license, collect and enforce copyright efficiently on an individual basis. Requiring users to obtain permission from individual copyright holders for the use of a work was equally inefficient. Collectives, therefore, emerged to facilitate the clearance of rights between creators and users. Even with the facilitation of collectives in the process, clearing rights remains an inherently difficult and convoluted process. This is especially so in the age of the Internet where clearing rights for multimedia products …

The Internationalization Of Intellectual Property: New Challenges From The Very Old And The Very New, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Intellectual property concepts embodied in international treaties and national laws date back to the eighteenth century. Many fundamental concepts (originality in copyright law; confusion in trademark law; novelty or inventiveness in patent law) vary from one country's national legislation to another. Yet, many critics of the intellectual property system recognize that solutions to the problems, ranging from database protection to the Internet, should ideally be the same worldwide. In today's globalized economy, it makes sense to adopt rules to protect that take account of the laws and practices of other nations and of the work of international organizations. Protecting only …

Collective Management Of Copyright And Neighboring Rights In Canada: An International Perspective, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

It is a generally held view that copyright in civil law countries is a child of the French Revolution and should be considered an inalienable right of the author, a human right in other words. In fact, it is enshrined in the Universal Declaration of Human Rights of 1948. Granted, in several cases the economic component of the right is transferred to, e.g., a publisher or a producer, but it remains, at source, a right of the author, the creator of the protected work (or object of a related right). By contrast, one often hears that, in common law jurisdictions, …

Electronic Rights Management And Digital Identifier Systems, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The new world of digital information requires a new way of providing access to that information — while keeping the copyright backbone. It might be technically easier to create a digital infrastructure without copyright: Just throw works up on the Internet, and let anyone get to them for any purposes. But such systems have been suggested and roundly rejected by those who create and own works of value. So we need to build an electronic infrastructure that works with copyright and takes advantage of the digital environment. This paper looks at the attempts to build part of that infrastructure — …

Intellectual Property Rights And The Gatt: United States Goals In The Uruguay Round, Mark L. Damschroder

Vanderbilt Journal of Transnational Law

The pursuit of protection of IP rights is a valuable goal both for the United States and the rest of the world community. Such rights promote creativity and the advancement of knowledge, as well as fuel the domestic economy and improve the position of the United States vis-a-vis the other trading nations of the world. With the growing interdependence of the global economy, there is no time like the present to lay the foundation for a system of dispute settlement of such trade matters. Economic interdependence will continue to increase, and the problems of international trade in, and piracy of, …

Foreign Income In The Music Industry, Leo Strauss, Jr.

Vanderbilt Journal of Transnational Law

The record and music industries have grown tremendously and have become much more sophisticated in recent years. At one time a music publisher merely listened to a song and if he liked it he acquired the copyright. A recording artist or a recording A & R man would record those songs that he happened to like. Those who were lucky had their share of hits. This normally does not work any more, although it does in certain localized contexts. The record industry is big business and spans national borders as well as continents, affecting and bringing into contact with each …