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Articles 1 - 16 of 16

Full-Text Articles in Law

The Research Patent, Sean B. Seymore Jan 2021

The Research Patent, Sean B. Seymore

Vanderbilt Law School Faculty Publications

The patent system gives courts the discretion to tailor patentability standards flexibly across technologies to provide optimal incentives for innovation. For chemical inventions, the courts deem them unpatentable if the chemical lacks a practical, non-research-based use at the time patent protection is sought. The fear is that an early-stage patent on a research input would confer too much control over yet-unknown uses for the chemical, thereby potentially hindering downstream innovation. Yet, denying patents on research inputs can frustrate patent law's broad goal of protecting and promoting scientific and technological advances.

This Article addresses this problem by proposing a new ...


The Machine As Author, Daniel J. Gervais Jan 2020

The Machine As Author, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Machines are increasingly good at emulating humans and laying siege to what has been a strictly human outpost: intellectual creativity.

At this juncture, we cannot know with certainty how high machines will reach on the creativity ladder when compared to, or measured against, their human counterparts, but we do know this. They are far enough already to force us to ask a genuinely hard and complex question, one that intellectual property (“IP”) scholars and courts will need to answer soon; namely, whether copyrights should be granted to productions made not by humans but by machines.

This Article’s specific objective ...


Intellectual Property: A Beacon For Reform Of Investor-State Dispute Settlement, Daniel J. Gervais Jan 2019

Intellectual Property: A Beacon For Reform Of Investor-State Dispute Settlement, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Investor-state dispute-settlement (ISDS) clauses give multinational investors (corporations) a right to sue a state in a binding proceeding before an independent arbitration tribunal. This jurisgenerative right to file a claim in an international tribunal with mandatory jurisdiction is generally reserved to States. ISDS is a mechanism meant to protect the private property of multinational investors against certain acts of public authorities.

Intellectual Property differs from the more traditional private (property) law interests that ISDS aims to protect. IP incorporates public policy objectives such as innovation, access to information or public health that are reflected in limitations and exceptions to the ...


Music As A Matter Of Law, Joseph P. Fishman Jan 2018

Music As A Matter Of Law, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

What is a musical work? Philosophers debate it, but for judges the answer has long been simple: music means melody. Though few recognize it today, that answer goes all the way back to the birth of music copyright litigation in the nineteenth century. Courts adopted the era’s dominant aesthetic view identifying melody as the site of originality and, consequently, the litmus test for similarity. Surprisingly, music’s single-element test has persisted as an anomaly within the modern copyright system, where typically multiple features of eligible subject matter are eligible for protection. Yet things are now changing. Recent judicial decisions ...


Honest Copying Practices, Joseph P. Fishman Jan 2017

Honest Copying Practices, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

One of intellectual property theory’s operating assumptions is that creating is hard while copying is easy. But it is not always so. Copies, though outwardly identical, can come from different processes, from cheap digital duplication to laborious handmade re-creation. Policymakers around the world face a choice whether such distinctions should affect liability. The two branches of intellectual property that condition liability on actual copying, copyright and trade secrecy, give different answers. Both in the United States and elsewhere, trade secrecy regimes distinguish between copying methods deemed illegitimate and those deemed legitimate, what international treaties call “honest commercial practices.” Copyright ...


The Copy Process, Joseph P. Fishman Jan 2016

The Copy Process, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

There’s more than one way to copy. The process of copying can be laborious or easy, expensive or cheap, educative or unenriching. But the two intellectual property regimes that make copying an element of liability, copyright and trade secrecy, approach these distinctions differently. Copyright conflates them. Infringement doctrine considers all copying processes equally suspect, asking only whether the resulting product is substantially similar to the protected work. By contrast, trade secrecy asks not only whether but also how the defendant copied. It limits liability to those who appropriate information through means that the law deems improper.

This Article argues ...


Authors, Online, Daniel J. Gervais Jan 2015

Authors, Online, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The fate of professional creators is a major cultural issue. While specific copyright rules are obviously contingent and should be adapted to the new realities of online distribution and easy reuse, professional authorship remains necessary. I also believe that to be a professional author, creators need time, which, in turn, does require some form of payment. We need healthy financial flows to allow professional authors to make a decent, market-based living. This requires a move away from one-size-fits-all copyright and the resulting "tug of norms" that requires a shift of the entire policy package to the benefit of one category ...


Plain Packaging And The Trips Agreement: A Response To Professors Davison, Mitchell And Voon, Daniel J. Gervais Jan 2013

Plain Packaging And The Trips Agreement: A Response To Professors Davison, Mitchell And Voon, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The issue of plain packaging is at the very core of the intersection between trade law, intellectual property and public health. Unlike the issue of export of generic pharmaceuticals, which was addressed in the World Trade Organization by the adoption of a specific Declaration and notification system, it seems that plain packaging will be addressed by the WTO Dispute-Settlement Body. A report prepared by the author in 2010 discussing the intellectual property aspects of plain packaging was critiqued by Professors Davison, Mitchell and Voon in several publications and submissions, including a recent book. In this article, the author responds to ...


Reinventing Lisbon: The Case For A Protocol To The Lisbon Agreement (Geographical Indications), Daniel J. Gervais Jan 2010

Reinventing Lisbon: The Case For A Protocol To The Lisbon Agreement (Geographical Indications), Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The Doha Development Agenda (Doha Round) of multilateral trade negotiations at the World Trade Organization (WTO) may fail unless a solution to the establishment of a multilateral register for geographical indications on wines and spirits (GIs) foreseen in the TRIPS Agreement is found. Failure of the Doha Round would entail serious intended and unintended consequences for the world trading system. Europe’s insistence on a Doha deal on GIs in now accompanied by demands from several developing countries for an extension of GI protection to products other than wines and spirits. Those demanders consider the current emphasis on alcoholic beverages ...


Of Silos And Constellations: Comparing Notions Of Originality In Copyright Law, Daniel J. Gervais, Elizabeth F. Judge Jan 2009

Of Silos And Constellations: Comparing Notions Of Originality In Copyright Law, Daniel J. Gervais, Elizabeth F. Judge

Vanderbilt Law School Faculty Publications

Originality is a central theme in the efforts to understand human evolution, thinking, innovation, and creativity. Artists strive to be "original," however the term is understood by each of them. It is also one of the major concepts in copyright law. This paper considers the evolution of the notion of originality since 2002 (when one of the coauthors published an article entitled Feist Goes Global: A Comparative Analysis Of The Notion Of Originality In Copyright Law) and continues the analysis, in particular whether the notion of "creative choices," which seems to have substantial normative heft in several jurisdictions, is optimal ...


Of Clusters And Assumptions: Innovation As Part Of A Full Trips Implementation, Daniel J. Gervais Jan 2009

Of Clusters And Assumptions: Innovation As Part Of A Full Trips Implementation, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Because TRIPS introduced a high(er) level of intellectual property protection in a number of developing countries, it provides an opportunity to examine the impact of the introduction of (property) rights on a variety of intangibles in legal systems from which those rights were absent. One question is whether, and if so how, 18th century European rules, updated in concert with other Western nations until 1989, can be successfully integrated into the social, cultural, economic and legal fabric of dozens of developing nations, and how success is measured in that context. TRIPS also allows us to consider the impact of ...


The Protection Of Databases, Daniel J. Gervais Jan 2007

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 ...


Intellectual Property, Trade & Development: The State Of Play, Daniel J. Gervais Jan 2005

Intellectual Property, Trade & Development: The State Of Play, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

This Article considers, first, available economic, social, and cultural analyses of the impact of intellectual property protection in developing countries. Economics provides a useful set of analytical tools and are directly relevant, in particular since the successfully arranged marriage of IP and trade rules after which it became inevitable that IP rules would be measured using an economic yardstick. The Paper also considers the claim that making proper intellectual property policy is impossible or inherently unreliable because theoretical models are inadequate or valid empirical data unavailable. Against this backdrop, the Article then examines the emergence of the World Trade Organization ...


Traditional Knowledge & Intellectual Property: A Trips-Compatible Approach, Daniel J. Gervais Jan 2005

Traditional Knowledge & Intellectual Property: A Trips-Compatible Approach, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Should intellectual property provide a means for strengthening the range of incentives that local communities need for conserving and developing genetic resources and traditional knowledge (TK)? If so, how and at what cost? To be able to suggest answers, a number of issues must be resolved. They are the focus of the Article. First, one must build, and then cross, a cultural bridge to explain current forms of intellectual property to holders of traditional knowledge, including definitional efforts to determine the nature and depth of the overlap(s). This achieves a dual objective: it allows intellectual property circles to understand ...


Spiritual But Not Intellectual? The Protection Of Sacred Intangible Traditional Knowledge, Daniel J. Gervais Jan 2003

Spiritual But Not Intellectual? The Protection Of Sacred Intangible Traditional Knowledge, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The use of sacred aboriginal art is nothing new. It is fairly common to see dream catchers hanging from rear view mirrors in cars. In Australia, sacred aboriginal designs are often found on tea towels, rugs and restaurant placemats. In the United States, people routinely Commercialize Navajo rugs containing both sacred and profane designs with no connection to the Navajo nation. Millions of dollars of Indian crafts imported from Asia are sold in the United States each year. Another example is the taking of sacred Ami chants by the German rock group Enigma for its song Return to Innocence. Can ...


The Internationalization Of Intellectual Property: New Challenges From The Very Old And The Very New, Daniel J. Gervais Jan 2002

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 ...