Law Commons^™

Pengelolaan Royalti Dari Pencipta Lagu Yang Tidak Terdaftar Di Lembaga Manajemen Kolektif Oleh Lembaga Manajemen Kolektif Nasional, Mohamad Thaufiq Rachman

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Royalty is a reward received by the author or owner of the related right concerning the utilization of their Economic Rights following Article 1 point 21 of Law No. 28, 2014 regarding Copyright ("UUHC 2014"). Royalty could also be interpreted as a form of appreciation for the Author's Works, such as song and/or music. Encouraging the spirit of industry players, including songwriters, is essential for continuous growth. As mentioned in the general explanation section of UUHC 2014, Copyright is the most important basis of the national creative economy. With the fulfillment of the protection and development of this creative economy, …

Weeds, Seeds, & Deeds Redux: Natural And Legal Evolution In The U.S. Seed Wars, Rebecca Stewart

Rebecca K Stewart

Ever since the U.S. Patent and Trademark Office began issuing utility patents for plants, the United States has sat squarely on the frontlines of what have come to be known as the “seed wars.” In the last two decades, the majority of battles in the U.S. seed wars have been waged in the form of patent infringement lawsuits. Typically these suits are filed by biotechnology corporations such as Monsanto against farmers accused of saving and planting patented seed that self-replicates to produce progeny embodying—and thus infringing—the biotech corporations’ patented inventions.

Yet in recent years, the seed wars have begun to …

Reforming Copyright Interpretation, Zahr K. Said

Zahr K Said

This Article argues that copyright law needs to acknowledge and reform its interpretive choice regime. Even though judges face potentially outcome-determinative choices among competing sources of interpretive authority when they adjudicate copyrightable works, their selection of interpretive methods has been almost entirely overlooked by scholars and judges alike. This selection among competing interpretive methods demands that judges choose where to locate their own authority: in the work itself; in the context around the work, including its reception, or in the author’s intentions; in expert opinions; or in judicial intuition. Copyright’s interpretive choice regime controls questions of major importance for the …

Short-Circuiting Contract Law: The Federal Circuit's Contract Law Jurisprudence And Intellectual Property Federalism, Shubha Ghosh

Shubha Ghosh

The Federal Circuit was established in 1982 as an appellate court with limited jurisdiction over patent claims. However, the Federal Circuit has used this limited jurisdiction to expand its reach into contract law, developing a federal common law of contract. Given the growing importance of patent litigation in the past three decades, this creation of an independent body of contract law creates uncertainty in transactions involving patents. This troublesome development received attention in Stanford v Roche, a 2011 Supreme Court decision upholding the Federal Circuit's invalidation of a patent assignment to Stanford University. This Article documents the development of …

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 …

Congress As A Catalyst Of Patent Reform At The Federal Circuit, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

The U.S. Court of Appeals for the Federal Circuit is the dominant institution in patent law. The court’s control over patent law and policy has led to a host of academic proposals to shift power away from the court and towards other institutions, including the U.S. Supreme Court, the U.S. Patent and Trademark Office, and federal district courts. Surprisingly, however, academics have largely dismissed Congress as a potential institutional check on the Federal Circuit. Congress, it is felt, is too slow, too divided, and too beholden to special interests to effectively monitor changes in innovation and respond with appropriate reforms. …

Patent Dialogue, Jonas Anderson

Articles in Law Reviews & Other Academic Journals

This Article examines the unique dialogic relationship that exists between the Supreme Court and Congress concerning patent law. In most areas of the law, Congress and the Supreme Court engage directly with each other to craft legal rules. When it comes to patent law, however, Congress and the Court often interact via an intermediary institution: the U.S. Court of Appeals for the Federal Circuit. In patent law, dialogue often begins when Congress or the Supreme Court acts as a dialogic catalyst, signaling reform priorities to which the Federal Circuit often responds.

Appreciating the unique nature of patent dialogue has important …

Rescuing Access To Patented Essential Medicines: Pharmaceutical Companies As Tortfeasors Under The Prevented Rescue Tort Theory, Richard Cameron Gower

Richard Cameron Gower

Despite some difficulties, state tort law can be argued to create a unique exception to patent law. Specifically, the prevented rescue doctrine suggests that charities and others can circumvent patents on certain critical medications when such actions are necessary to save individuals from death or serious harm. Although this Article finds that the prevented rescue tort doctrines is preempted by federal patent law, all hope is not lost. A federal substantive due process claim may be brought that uses the common law to demonstrate a fundamental right that has long been protected by our Nation’s legal traditions. Moreover, this Article …

The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh

All Faculty Scholarship

Not all copying constitutes copyright infringement. Quite independent of fair use, copyright law requires that an act of copying be qualitatively and quantitatively significant enough or “substantially similar” for it to be actionable. Originating in the nineteenth century, and entirely the creation of courts, copyright’s requirement of “substantial similarity” has thus far received little attention as an independently meaningful normative dimension of the copyright entitlement. This Article offers a novel theory for copyright’s substantial-similarity requirement by placing it firmly at the center of the institution and its various goals and purposes. As a common-law-style device that mirrors the functioning of …

The Obligatory Structure Of Copyright Law: Unbundling The Wrong Of Copying, Shyamkrishna Balganesh

All Faculty Scholarship

No abstract provided.

"Hot News": The Enduring Myth Of Property In News, Shyamkrishna Balganesh

All Faculty Scholarship

No abstract provided.

When Users Are Authors: Authorship In The Age Of Digital Media, Alina Ng

Alina Ng

This Article explores what authorship and creative production means in the digital age. Notions of the author as the creator of the work provided a point of reference for recognizing ownership rights in literary and artistic works in conventional copyright jurisprudence. The role of the author, as the creator and producer of a work, has been seen as distinct and separate from that of the publisher and user. Copyright laws and customary norms protect the author’s rights in his creation to provide the incentive to create and allow him to appropriate the social value generated by his creativity as recognition …

Foreseeability And Copyright Incentives, Shyamkrishna Balganesh

All Faculty Scholarship

Copyright law’s principal justification today is the economic theory of creator incentives. Central to this theory is the recognition that while copyright’s exclusive rights framework provides creators with an economic incentive to create, it also entails large social costs, and that creators therefore need to be given just enough incentive to create in order to balance the system’s benefits against its costs. Yet, none of copyright’s current doctrines enable courts to circumscribe a creator’s entitlement by reference to limitations inherent in the very idea of incentives. While the common law too relies on providing actors with incentives to behave in …

Demystifying The Right To Exclude: Of Property, Inviolability, And Automatic Injunctions, Shyamkrishna Balganesh

All Faculty Scholarship

The right to exclude has long been considered a central component of property. In focusing on the element of exclusion, courts and scholars have paid little attention to what an owner's right to exclude means and the forms in which this right might manifest itself in actual property practice. For some time now, the right to exclude has come to be understood as nothing but an entitlement to injunctive relief- that whenever an owner successfully establishes title and an interference with the same, an injunction will automatically follow. Such a view attributes to the right a distinctively consequentialist meaning, which …

Copyright's Empire: Why The Law Matters, Alina Ng

Alina Ng

Two separate and distinct movements have colonized research in the field of intellectual property. Law and economics has deepened our understanding of the justification for granting monopoly rights over intellectual property. In recent years, economic theories have been used to support the growth of the commons – the free environment, where intellectual property plays little role in generating new creative works and innovation. The second movement is law and technology that has sought to increase understanding of intellectual property through the exploration of how technologies either provide freedoms or impose limitations to how creative works and innovation are created and …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Taking Copyright Seriously: Abridging Rights Is More Serious Than Inflating Rights, Alina Ng

ExpressO

The proper balance between private rights and public interests in copyright has always been a heated debate. As communication and information technologies converge and develop to enable authors and users of creative works to create and use works without the physical limitations of the analog world, the debate has become more intense. This paper intends to contribute to the debate by bringing attention to basic ideas about rights and the importance of copyright as an institution to ensure that authors create new literary and artistic works for the benefit of the public. Rights under copyright are rights that define the …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

I Know You Are, But What Am I? A Temporal Approach To Legal Classification, Wendy A. Adams

ExpressO

No real epistemological disagreement exists that legal knowledge can be represented and understood in categorical form. At issue is the extent to which categorical analysis captures the full complexity of legal reasoning. Can legal reasoning be represented as a taxonomy of mutually-exclusive classes, a taxonomy considered necessary if legal certainty and the rule of law are to prevail, or does the complexity of the process defy attempts at exhaustive classification?

The author agrees with those who argue that multiple legal concepts must often be applied simultaneously to resolve legal problems. The author also acknowledges that simultaneous application of multiple concepts …

The (Practical) Meaning Of Property, Vincent F. Chiappetta

ExpressO

I argue that a functional approach to property - defining it as society’s decisions allocating varying kinds and degrees of legal control over resources rather than in terms of fixed sets of attributes or predefined goals - significantly clarifies public policy debate and related decision-making. That approach demonstrates we should reject characterizations of property as a yes-no proposition to which we react as well as the assumption that those who disagree with us are fools or worse. Those characterizations distract us from the central issue in property - our persistent normative disagreements regarding what constitutes its just application. Discussing property …

Principles Of Fairness For International Economic Treaties: Constructivism And Contractualism, John Linarelli

ExpressO

No legal system deserving of continued support can exist without an adequate theory of justice. This paper is about the elaboration of a theory of justice to underpin international economic law and international economic institutions. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. There is yet no consensus on the public reason underpinning the rules and the institutions. Economic efficiency concepts are widely used in the assessment of the welfare effects of world trade institutions and policies. Efficiency, however, is one of several standards that may be used, but …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Principles Of Fairness For International Economic Treaties: Constructivism And Contractualism, John Linarelli

ExpressO

No legal system deserving of continued support can exist without an adequate theory of justice. This paper is about the elaboration of a theory of justice to underpin international economic law and international economic institutions. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. There is yet no consensus on the public reason underpinning the rules and the institutions. Economic efficiency concepts are widely used in the assessment of the welfare effects of world trade institutions and policies. Efficiency, however, is one of several standards that may be used, but …

The Utility Of A Bright-Line Rule In Copyright Law: Freeing Judges From Aesthetic Controversy And Conceptual Separability In Leicester V. Warner Bros., John B. Fowles

ExpressO

No abstract provided.

Copyright And Free Expression: The Convergence Of Conflicting Normative Frameworks, Shyamkrishna Balganesh

All Faculty Scholarship

Recent attempts to expand the domain of copyright law in different parts of the world have necessitated renewed efforts to evaluate the philosophical justifications that are advocated for its existence as an independent institution. Copyright, conceived of as a proprietary institution, reveals an interesting philosophical interaction with other libertarian interests, most notably the right to free expression. This paper seeks to understand the nature of this interaction and the resulting normative decisions. The paper seeks to analyze copyright law and its recent expansions, specifically from the perspective of the human rights discourse. It looks at the historical origins of modern …

Whose Music Is It Anyway?: How We Came To View Musical Expression As A Form Of Property -- Part I, Michael W. Carroll

Working Paper Series

Many participants in the music industry consider unauthorized downloading of music files over the Internet to be “theft” of their “property.” Many Internet users who exchange music files reject that characterization. Prompted by this dispute, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing musicmaking in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some exclusive rights in the Middle …

Extending The Revisionist Project, Lewis Grossman

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Resolving Tensions Between Copyright And The Internet, Walter Effross

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Arguing From Necessity: A Comment On "Hegel And The Crisis Of Private Law", Charles M. Yablon

Cardozo Law Review

No abstract provided.

Righting Rights, Lawrence G. Sager

Cardozo Law Review

No abstract provided.