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Full-Text Articles in Law
Do We Have Too Many Intellectual Property Rights?, Richard A. Posner
Do We Have Too Many Intellectual Property Rights?, Richard A. Posner
Marquette Intellectual Property Law Review
The Honorable Richard A. Posner discusses the dangers presented by the propertization of intellectual property rights, particularly in the areas of copyright and patent. Unlike physical property, intellectual property rights are limited by duration, scope, and allowance of faire use. These limitations underlie the existence of a rich public domain that encourages the most valuable uses of intellectual property by reducing transaction costs and encouraging the creation of additional creative works.
Divergent Evolution Of The Patent Power And The Copyright Power, Edward C. Walterscheid
Divergent Evolution Of The Patent Power And The Copyright Power, Edward C. Walterscheid
Marquette Intellectual Property Law Review
Patent and copyright law in the United States derives from a constitutional grant of power to Congress, which drafted the Patent and Copyright Acts. The U.S. Supreme Court has addressed the meaning of various terms in the Patent and Copyright Clause, but only addressed the constitutionality of a copyright statute in 2003. The Court has never considered the constitutionality of a patent statute. The purpose of this article is to explore Congress' and the courts' diverging interpretations of the patent and copyright powers. It explores the reasons for this divergence, tracing the historic kinship between the two powers from the …
A Technical Critique Of Fifty Software Patents, Martin Campbell-Kelly, Patrick Valduriez
A Technical Critique Of Fifty Software Patents, Martin Campbell-Kelly, Patrick Valduriez
Marquette Intellectual Property Law Review
There has been a great deal of discussion on the desirability of software patents in the legal, economic, and technical academic literature. Case law is the basis of most of the legal literature on the topic. Typically, the basis of the economic literature on patents is the statistical analysis of large numbers of patents. The technical literature frequently hostile to patents often is based on an examination of a small number of pathologically bad patents The authors seek to overcome the inherent limitations of each category of article. The approach taken was to conduct a detailed, technical examination of the …
Towards A New Core International Copyright Norm: The Reverse Three-Step Test, Daniel J. Gervais
Towards A New Core International Copyright Norm: The Reverse Three-Step Test, Daniel J. Gervais
Marquette Intellectual Property Law Review
This paper argues that it is time to replace the existing set of copyright rights by focusing on its true policy objectives. The paper identifies what is wrong with extant norms and spotlights the apparent chasm between the policy objectives and the norms. The paper proposes a new international copyright norm based on the Berne Convention's three-step test, in harmony with the U.S. fair use doctrine. The author suggests that fair use reflects an appropriate set of criteria to balance the rights of copyright holders and the needs and interests of users, which could serve as a basis to build …
The Spawn Of Learned Hand-A Reexamination Of Copyright Protection And Fictional Characters: How Distinctly Delineated Must The Story Be Told?, Gregory S. Schienke
The Spawn Of Learned Hand-A Reexamination Of Copyright Protection And Fictional Characters: How Distinctly Delineated Must The Story Be Told?, Gregory S. Schienke
Marquette Intellectual Property Law Review
Fictional characters are the backbone of the multi-billion dollar entertainment industry. Since the early twentieth century, the owners of fictional characters have recognized that there is money to be made in derivative products featuring those characters and move swiftly to stop infringing use of those characters. Learned Hand, in passing, allowed that fictional characters could be protected through copyright law if the characters were distinctly delineated. Since then, the courts have created a piecemeal protective-strategy involving trademark and copyright law to protect fictional characters. The Seventh Circuit in Gaiman v. McFarlane, continued using the traditional analysis, that copyrightability for a …
An Umbrella Or A Canopy?: Why The 17 U.S.C. Section 512(A) Safe Harbor Should Be Read Broadly, Sven Skillrud
An Umbrella Or A Canopy?: Why The 17 U.S.C. Section 512(A) Safe Harbor Should Be Read Broadly, Sven Skillrud
Marquette Intellectual Property Law Review
With technology constantly changing, the interaction between copyright law and technology is always at odds, especially since the evolution of the Internet. To keep up with the ever-changing Internet, Congress enacted the Digital Millennium Copyright Act; specifically, it created four safe harbors that are intended to protect entities from copyright infringement that qualify as online service providers. However, it seems that the courts have had trouble interpreting who is covered under these safe harbors, namely, as to what entities qualify under the first safe harbor "Transitory Digital Network Communications." There are only a few cases where entities have qualified under …
The Architectural Works Copyright Protection Act: Much Ado About Something?, Antoinette Vacca
The Architectural Works Copyright Protection Act: Much Ado About Something?, Antoinette Vacca
Marquette Intellectual Property Law Review
The AWCPA has been in effect for thirteen years, enough time for an evaluation of its effect on those who have been working within its framework. Has the Architectural Works Copyright Protection Act of 1990 (AWCPA) met the public's interests by encouraging original and innovative design? U.S. intellectual property laws are founded on balancing benefit to the public with reward and incentive to the author, while the standards of protection under the Berne Convention are grounded in the principle that copyright is a natural right of the author. The AWCPA of 1990 adopted the Berne Standard of according protection to …