Law Commons^™

Floors And Ceilings In International Copyright Treaties: Berne/Trips/Wct Minima And Maxima, Jane C. Ginsburg

Faculty Scholarship

This paper addresses “floors” – minimum substantive international protections, and “ceilings” – maximum substantive international protections, set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the “maxima” have generally received less attention. This Comment first describes the general structure of the Berne Convention, TRIPS and WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive. Within the universe of multilateral copyright obligations, the Berne maxima (prohibition of protection for facts and news of the day), buttressed by …

Taxing Creativity, Jeffrey A. Maine

Faculty Publications

The recent sell offs of song catalogs by Bob Dylan, Stevie Nicks, Neil Young, and Mick Fleetwood for extraordinarily large sums of money raise questions about the law on creativity. While patent and copyright laws encourage a wide array of creative endeavors, tax laws governing monetization of creative works do not. The Songwriters Capital Gains Equity Act, in particular, solidifies creativity exceptionalism, exacerbates tax inequities among creators, and perpetuates racial disparities in the tax Code. This Article asserts that the law must encourage creativity from all creators. It is time to eliminate tax exceptionalism for musical compositions or expand its …

Compulsory Licensing Of Patents In Times Of Public Health Emergency, Kelsey Truglio

Touro Law Review

In March 2020, the United States shut down to avoid the continued spread of the COVID-19 virus as it spread globally. In December 2020, the first COVID-19 vaccines were granted emergency usage authorization in the United States. Wealthy nations were able to quickly purchase and hoard vaccines for public distribution, leaving many third-world countries and developing nations struggling to continue to survive the pandemic without vaccination.

Compulsory licensing should be allowed on otherwise patented or patentable new technology in times of global health emergency, regardless of which entity creates the technology. This will enable governments of countries spanning all wealth …

Technological Self-Sufficiency And The Role Of Novelty Traps, Rochelle C. Dreyfuss, Daniel Benoliel

Vanderbilt Journal of Entertainment & Technology Law

The COVID pandemic has demonstrated the tragic consequences of technological dependency. Unable to manufacture vaccines for themselves, developing countries must rely on obtaining supplies from other nations. While strong arguments have been made to waive international obligations under the TRIPS Agreement to permit these countries to freely use COVID-related patented inventions, it is not clear that this move would produce sufficient vaccines to meet global demand. Considerable scholarship has been devoted to the question of how to help these countries reach the technological frontier and become technologically independent. In this Article, we identify a novel source of their problem: a …

A Compulsory Solution To The Machine Problem, Cole G. Merritt

Vanderbilt Law School Faculty Publications

Artificial Intelligence (AI) is already disrupting and will likely continue to disrupt many industries. Despite the role AI already plays, AI systems are becoming increasingly powerful. Ultimately, these systems may become a powerful tool that can lead to the discovery of important inventions or significantly reduce the time required to discover these inventions. Even now, AI systems are independently inventing. However, the resulting AI-generated inventions are unable to receive patent protection under current US patent law. This unpatentability may lead to inefficient results and ineffectively serves the goals of patent law.

To embrace the development and power of AI, Congress …

Taxing Creativity, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

The recent sell offs of song catalogs by Bob Dylan, Stevie Nicks, Neil Young, and Mick Fleetwood for extraordinarily large sums of money raise questions about the law on creativity. While patent and copyright laws encourage a wide array of creative endeavors, tax laws governing monetization of creative works do not. The Songwriters Capital Gains Equity Act, in particular, solidifies creativity exceptionalism, exacerbates tax inequities among creators, and perpetuates racial disparities in the tax Code. This Article asserts that the law must encourage creativity from all creators. It is time to eliminate tax exceptionalism for musical compositions or expand its …

Justice Breyer And Patent Eligibility, David O. Taylor

Faculty Journal Articles and Book Chapters

Justice Breyer leaves the Supreme Court having left a significant mark on patent eligibility law. In Mayo Collaborative Services v. Prometheus Laboratories, he eliminated the ability to obtain patents on many useful applications of new (and even breakthrough) discoveries. The author discusses how Justice Breyer’s test for patent eligibility both contradicts the historical approach and has had pernicious impact on the patent system and investment in development of technology, including, and in particular, medical technologies.

Authoring Prior Art, Joseph P. Fishman, Kristelia Garcia

Vanderbilt Law School Faculty Publications

Patent law and copyright law are widely understood to diverge in how they approach prior art, the universe of information that already existed before a particular innovation’s development. For patents, prior art is paramount. An invention can’t be patented unless it is both novel and nonobvious when viewed against the backdrop of all the earlier inventions that paved the way. But for copyrights, prior art is supposed to be virtually irrelevant. Black-letter copyright doctrine doesn’t care if a creative work happens to resemble its predecessors, only that it isn’t actually copied from them. In principle, then, outside of the narrow …

The Racial Politics Of Fair Use Fetishism, Anjali Vats

Articles

This short essay argues that the sometimes fetishistic desire on the part of progressive intellectual property scholars to defend fair use is at odds with racial justice. Through a rereading of landmark fair use cases using tools drawing from Critical Race Intellectual Property (“CRTIP”), it contends that scholars, lawyers, judges, practitioners, and activists would be well served by focusing on how fair use remains grounded in whiteness as (intellectual) property. It argues for doing so by rethinking the purpose of the Copyright Act of 1976 to be inclusive of Black, Brown, and Indigenous authors.

Investigating Design, Jessica Silbey, Mark P. Mckenna

Faculty Scholarship

Design is ascendant. Steve Jobs’s legendary obsession with design was widely regarded as Apple’s comparative advantage, and that lesson has not been lost on its competitors. Design thinking is a growth industry, in business and at universities, and design professionals continue to take on increasingly significant roles within firms. The increasing economic significance of design has been reflected in an explosion of design patent applications and increasing amount of design litigation.

Despite design’s growing economic and legal importance, relatively little is known by legal scholars and policymakers about designers or the design process. This paper addresses that gap and is …

Copyright, Creativity, Big Media And Cultural Value: Incorporating The Author, Jane C. Ginsburg

Faculty Scholarship

Copyright, Creativity, Big Media and Cultural Value is a wide-ranging work of immense erudition and archival research, combining several historical studies of the ‘incorporation’ of the author in different sectors of the ‘creative industries’. The book’s subtitle, ‘Incorporating the Author’, astutely encompasses multiple meanings, whose implications the book works through. These include the author as an initiating participant in a larger economic structure (Chapter 3 (print publishing)). But also, the author as a bit player enveloped by a larger economic structure (Chapter 5 (film industry)). And the author (or performer) as an autonomous object of economic value (Chapters …

Ms. Attribution: How Authorship Credit Contributes To The Gender Gap, Jordana Goodman

Faculty Scholarship

Misattribution plagues the practice of law in the United States. Seasoned practitioners and legislators alike will often claim full credit for joint work and, in some cases, for the entirety of a junior associate’s writing. The powerful over-credit themselves on legislation, opinions, and other legal works to the detriment of junior staff and associates. The ingrained and expected practice of leveraging junior attorneys as ghost-writers is, to many, unethical. But it presents a distinct concern that others have yet to interrogate: misattribution disparately impacts underrepresented members of the legal profession.

This Article fills that space by offering a quantitative analysis …

Help Was Not On The Way: Intellectual Property Liability Relief In A Pandemic Era, Kim Vu-Dinh

Faculty Scholarship

On January 21, 2020, the United States recorded its first case of COVID-19. By April of that same year, numerous hospitals across the nation had exhausted entire reserves of personal protective equipment (PPE), with looming uncertainty as to when they would be replenished. As infection numbers increased exponentially, global demand for some types of PPE increased by 1000%.

Volunteers across the nation assembled teams of makers—some professionals, but also scores of amateurs—to craft the critical equipment needed to slow down the onslaught of the pandemic. From creating cloth masks to ventilator pistons, nonprofits and everyday citizens were able to partially …

Navigating The Identity Thicket: Trademark's Lost Theory Of Personality, The Right Of Publicity, And Preemption, Jennifer E. Rothman

All Faculty Scholarship

Both trademark and unfair competition laws and state right of publicity laws protect against unauthorized uses of a person’s identity. Increasingly, however, these rights are working at odds with one another, and can point in different directions with regard to who controls a person’s name, likeness, and broader indicia of identity. This creates what I call an "identity thicket" of overlapping and conflicting rights over a person’s identity. Current jurisprudence provides little to no guidance on the most basic questions surrounding this thicket, such as what right to use a person’s identity, if any, flows from the transfer of marks …

Patents And Competition: Commercializing Innovation In The Global Ecosystem For 5g And The Internet Of Things, Thomas D. Grant, F. Scott Kieff

GW Law Faculty Publications & Other Works

Times are changing as our global ecosystem for commercializing innovation helps bring new technologies to market, networks grow, interconnections and transactions become more complex around standards and otherwise, all to enable vast opportunities to improve the human condition, to further competition, and to improve broad access. The policies that governments use to structure their legal systems for intellectual property, especially patents, as well as for competition—or antitrust—continue to have myriad powerful impacts and raise intense debates over challenging questions. This Chapter explores a representative set of debates about policy approaches to patents, to elucidate particular ideas to bear in mind …

Authoring Prior Art, Joseph P. Fishman, Kristelia A. García

Publications

Patent law and copyright law are widely understood to diverge in how they approach prior art, the universe of information that already existed before a particular innovation’s development. For patents, prior art is paramount. An invention can’t be patented unless it is both novel and nonobvious when viewed against the backdrop of all the earlier inventions that paved the way. But for copyrights, prior art is supposed to be virtually irrelevant. Black-letter copyright doctrine doesn’t care if a creative work happens to resemble its predecessors, only that it isn’t actually copied from them. In principle, then, outside of the narrow …

Vaccine Clinical Trials And Data Infrastructure, Ana Santos Rutschman

Utah Law Review

We find ourselves at a momentous turn in the history of vaccines. The COVID-19 pandemic triggered a quasi-global vaccine race that not only compressed vaccine research and development (R&D) timelines, but also paved the way for the administration of a new type of vaccine technology – mRNA vaccines, which work in substantially different ways from the vaccines in use before the pandemic.

While the process of bringing emerging COVID-19 vaccines to market has taken place in an unusually short timeframe, it was largely predicated on the same scientific and regulatory processes that govern the development, approval and deployment of new …

A Typology Of Disclosure, Sharon K. Sandeen

Akron Law Review

Information and data have always been valuable to businesses, but in the Information Age, as businesses have figured out more ways to commoditize the information and data they possess, there has been a corresponding increase in expressed concerns about the unauthorized “disclosure” of information. Often, these concerns are expressed in absolute terms, as if any unauthorized disclosure of information constitutes an act of unfair competition or theft. The problem is that the common understanding of disclosure, particularly among information owners that seek to restrict access to the information they possess, belies the legal meaning of the term as used in …

Striking The Right Balance: Following The Doj's Lead For Innovation In Standardized Technology, Kristen Osenga

Akron Law Review

Today’s technology standards are the result of an extraordinary amount of innovation, collaboration and competition. These concepts are interrelated, and each is enhanced or enabled by intellectual property. Where these three concepts come together in standards development, it is unsurprising that antitrust concerns are also present. Specifically, the interests of contributors, participants, and implementers must be fairly balanced to ensure that the appropriate types and levels of innovation, collaboration, and competition can occur—and that the public will benefit. It is important that antitrust enforcement involving standards development organizations and owners of standards essential patents recognize the careful balance of these …

After The Trolls: Patent Litigation As Ex Post Market-Making, Robert Merges

Akron Law Review

Patent policy has been dominated lately by efforts to reduce rent-seeking patent troll litigation. As recent reforms begin to take effect, it is timely to consider the more constructive aspects of patent litigation. This Article contends that the lag between product development and patent litigation, which pushes the problem of patent valuation into the ex post (after product development) period, serves just such a positive function. Re-search, development, and product roll-out can all take place first. Then, at a later stage, patent litigation sorts out the relative merits and contributions of the various inventors and competitors who contributed to the …

Emotions And Intellectual Property Law, Margaret Chon

Akron Law Review

Emotions constitute an integral part of the diverse approaches that we bring to bear upon our most pressing law and policy issues. This article explores the role of emotions in intellectual property, information, and technology law (IP). Like other areas of law, IP commits to, prioritizes, and even honors, reason, logic, and facts—which can result in the sidelining of the affective components of law. Yet our affective responses to legal and other phenomena influence both cognition and reason. Part I of the article provides a general overview of the field of law and emotions, pointing out how this approach to …

Copyrighting Tiktok Dances: Choreography In The Internet Age, Ali Johnson

Washington Law Review

TikTok is a video-sharing social media application that launched in 2018 and has grown wildly since its inception. Many users are drawn to the platform by “dance challenges”—short dance routines of varying complexity set to popular songs that are recreated by other users, eventually going “viral” (i.e., recreated on a massive scale by other users) on the app. Going viral can provide young dancers and choreographers an opportunity to break into the highly competitive entertainment industry. However, there is a problem: due to TikTok’s interface and community practices, the original creators of a dance (who, significantly, are often young women …

Games Without Frontiers: The Increasing Importance Of Intellectual Property Rights In The People’S Republic Of China, James M. Cooper

Faculty Scholarship

Intellectual property (“IP”) protection in the People's Republic of China has been murky and amorphous. The country is currently enjoying a historic era with significant infrastructure and investment projects occurring as the Chinese consumer society substantially expands. These simultaneous trends require that China commit to the securitization and protection of IP rights to sustain its rapid economic growth.

Trademark, Labor Law, And Antitrust, Oh My!, Jessica Silbey

Faculty Scholarship

I am allergic to antitrust law, but after reading Hiba Hafiz’s recent article, I understand that my aversion is problematic. This paper combines an analysis of trademark law, labor law, and antitrust law to explain how employers exploit trademark law protections and defenses to control labor markets and underpay and under-protect workers. For most IP lawyers and professors, this article will open our minds to some collateral effects of trademark law’s consumer protection rationale on other areas of law with important consequences for economic and social policies.

Protecting Patent Owners From Infringement By The States: Will The Intellectual Property Rights Restoration Act Of 1999 Finally Satisfy The Court?, Brandon White

Akron Law Review

The Intellectual Property Rights Restoration Act of 1999 (IPRRA), a Senate Bill currently making its way through Congress, seeks to provide a remedy for patent infringement by the states that Supreme Court will find constitutional. In this Comment, Part II will explore the history of state sovereign immunity under both the Eleventh Amendment and the common law. Part III examines Senate Bill 1835, also known as the Intellectual Property Rights Restoration Act of 1999. Part III looks at not only the substantive provisions of the IPRRA, but also at the legal arguments and policy concerns that support the Act. Part …

Intellectual Property Through A Non-Western Lens: Patents In Islamic Law, Tabrez Y. Ebrahim

Georgia State University Law Review

The intersection of secular, Western intellectual property law and Islamic law is undertheorized in legal scholarship. Yet the nascent and developing non-Western law of one form of intellectual property—patents—in Islamic legal systems is profoundly important for transformational innovation and economic development initiatives of Muslim-majority countries that comprise nearly one-fifth of the world’s population.

Recent scholarship highlights the tensions of intellectual property in Islamic law because religious considerations in an Islamic society do not fully align with Western notions of patents. As Islamic legal systems have begun to embrace patents in recent decades, theories of patents have presented conceptual and theological …

Penal Protection Of Intellectual Technology In Jordanian Legislation “Critical Analytical Study”, ممدوح حسن العدوان, Abdulellah M. Al-Nawaysh

Jerash for Research and Studies Journal مجلة جرش للبحوث والدراسات

There is no doubt that the information revolution that accompanied the emergence of computer and information technology prompted the penal legislator to enact legislation to confront the infringement of property rights to the information and to the outputs of this modern technology, and to close the door against those who try to undermine those rights that were created by this technology.

Accordingly, this research was presented to highlight the Jordanian penal legislation related to intellectual property, which provided this protection. This research addressed three topics. The first section defined the meaning of information technology as well as intellectual property legislation. …

Governing The Unknown: How The Development Of Intellectual Property Law In Space Will Shape The Next Great Era Of Exploration, Exploitation, And Invention, Lauren Peterson

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Intellectual Property, Secrets, And Declassified Information. Mastering United States Government Information: Sources And Services, Christopher C. Brown, Libraries Unlimited, 2020., Suzanne Reinman

Journal of the Patent and Trademark Resource Center Association

No abstract provided.

Code Ownership : Plagiarism And Use, Alexis Nicole Amore

Theses, Dissertations and Culminating Projects

Technology is moving at unmeasurable rates to that of law. Ownership rights and legality become harder to grasp distant theories. With community code-sharing and limiting language structures, when does code become plagiarized or entity-owned? The disciplines of Cyberlaw and computer science are used to provide a better understanding.

The Cyberlaw discipline explores how jurisdiction views cyberspace, source code, and source code’s placement within legislation. Due to cyberspace’s ever-evolving nature, litigation struggles to encompass the possibilities within it. Computer science delves into theory-based excursions that define the law’s shape in the cyber realm. It bolsters the possibility of implementing progressive legislation …