Law Commons^™

Copyright In The 101st Congress: Commentary On The Visual Artists Rights Act And The Architectural Works Copyright Protection Act Of 1990, Jane C. Ginsburg

Faculty Scholarship

In the Visual Artists Rights Act, Congress has for the first time included moral rights within the U.S. copyright statute. Well-known in continental European copyright doctrine, and secured by the Berne Convention, moral rights afford protection for the author's personal, non-economic interests in receiving attribution for her work, and in preserving the work in the form in which it was created, even after its sale or licensing. These rights of attribution (sometimes infelicitously labeled the "right of paternity") and of integrity are conceptually distinct from the economic rights of exploitation set forth in section 106 of the 1976 Copyright Act. …

Intellectual And Informational Property Rights: Panel Iv - Introduction: Property In Mass Media Law, Lee C. Bollinger

Faculty Scholarship

This is the panel on intellectual and informational property rights. As you can see, there are three panelists other than myself: Ed Kitch, Stephen Carter, and Frank Easterbrook.

I want to begin with just a few thoughts on an area that I know something about: press and media law. I would like to say two things about the notion of property and how it arises in the context of a few problems in the area of mass media law.

Creation And Commercial Value: Copyright Protection Of Works Of Information, Jane C. Ginsburg

Faculty Scholarship

In 1899, Augustine Birrell, a Victorian barrister, lamented: "The question of copyright has, in these latter days, with so many other things, descended into the market-place, and joined the wrangle of contending interests and rival greedinesses." Birrell's remark conveys distaste for those authors who would "realise the commercial value of their wares." But the question of copyright has always been joined with that of commercial value. Indeed, by affording authors limited monopoly protection for their writings, our Constitution relies on wrangling greed to promote the advancement of both creativity and profit. Nonetheless, the distinction Birrell implies between copyrightworthy works of …

The Semiconductor Chip Protection Act And Its Impact On The International Protection Of Chip Designs, Jay Erstling

Faculty Scholarship

The United States Semiconductor Chip Protection Act of 1984 (“SCPA”') has already had a profound impact on the creation of foreign legal systems of chip protection. The allure of reciprocity under the SCPA has motivated a host of nations, including Japan, the Member States of the European Communities (“EC”'), Sweden, Finland, Canada, Australia, and Switzerland, to adopt or consider adopting chip protection legislation. The SCPA has also been the impetus for multilateral discussions within the World Intellectual Property Organization (“WIPO”') and the General Agreement on Tariffs and Trade (“GATT”') to establish an international standard of chip protection. The result has …

An Inquiry Into The Merits Of Copyright: The Challenges Of Consistency, Consent And Encouragement Theory, Wendy J. Gordon

Faculty Scholarship

Hostility to copyright has a long and honorable history. In the nineteenth century, for example, Lord Macaulay argued that while copyright might be necessary to ensure a "supply of good books," the monopoly that it imposed was at best a necessary evil.

"For the sake of the good we must submit to the evil; but the evil ought
not to last a day longer than is necessary for the purpose of securing the good."

A number of studies critical of intellectual property followed in our century. The most well known is probably the economically oriented 1970 study by Stephen Breyer …

The "Law Of Ideas" Reconsidered, Margreth Barrett

Faculty Scholarship

No abstract provided.

Design Protection And The New Technologies: The United States Experience In A Transnational Perspective, Jerome H. Reichman

Faculty Scholarship

No abstract provided.

French Copyright Law: A Comparative Overview, Jane C. Ginsburg

Faculty Scholarship

French copyright law has attracted considerable recent attention in the United States. Debate over the nature and scope of legislation permitting U.S. entry into the Berne Union for the Protection of Literary and Artistic Works spurred some of this interest: because France was a founding member of that Union, some participants in the Berne adherence process perceived "Berne level" copyright protection to be synonymous with "French" copyright protection. As Congress continues to consider modifications to the U.S. copyright law, particularly in the area of moral rights, France again supplies a leading example. And the on-going litigation in France concerning the …

Copyright Protection Of Fictional Characters In Japan, Kenneth L. Port

Faculty Scholarship

There is a renewed interest in the United States in Japanese Copyright law. Specifically, new attention has been focused on the protection of computer software under the Japanese Copyright Act, but only a cursory attempt has been given in English language literature to the issue of whether fictional characters can be protected using copyright law in Japan independent of the original work. The objective of this Comment is to fill this void. First the Comment presents the fundamental concepts of American copyright law needed as background knowledge to understand the issue. The Comment then explores the existing satiation in Japan …

The Search For An Author: Shakespeare And The Framers, James Boyle

Faculty Scholarship

No abstract provided.

Colors In Conflicts: Moral Rights And The Foreign Exploitation Of Colorized U.S. Motion Pictures, Jane C. Ginsburg

Faculty Scholarship

This article explores an international aspect of the current debate over colorized motion pictures. Under the present U.S. copyright law, most film directors and other creative contributors to an audiovisual work are unlikely to obtain injunctive relief from a U.S. court against the exhibition or dissemination of color-encoded versions of black and white originals. The difficulty is not simply that the U.S. copyright law does not recognize a specific moral right of integrity independent of economic rights. The director's poor domestic prospects are largely due to U.S. copyright law's work-made-for-hire doctrine. Most contributors to an audiovisual work are employees for …

One Hundred And Two Years Later: The U.S. Joins The Berne Convention, Jane C. Ginsburg, John M. Kernochan

Faculty Scholarship

In historic votes on October 5 and October 12, the U.S. Senate and House of Representatives unanimously approved legislation designed to bring U.S. law into compliance with the Berne Convention. The legislation was signed by President Reagan on October 31, 1988. Also signed by the President was a Senate Resolution of October 20 of Ratification of the Berne Convention. Following deposit of the requisite instruments with the World Intellectual Property Organization in Geneva, U.S. adherence to Berne took effect on March 1, 1989.

For the U.S., this momentous step is the culmination of decades of struggle, including many failed attempts …

Masking Copyright Decisionmaking: The Meaninglessness Of Substantial Similarity, Amy B. Cohen

Faculty Scholarship

Traditionally courts have place great weight on the issue of substantial similarity in adjudicating copyright infringement lawsuits. Once success is proven, a court will usually find infringement if the works are viscerally determined to be substantially similar. This Article criticizes the traditional approach as failing adequately to distinguish copying from misappropriation, failing adequately to distinguish ideas from expression, failing to provide adequate guidelines for determining misappropriation, and as overlapping with fair use determinations. The Article also criticizes variations on the traditional approach imposed by the Third and Ninth Circuit Courts of Appeal as not remedying the traditional approach's fundamental shortcomings. …

Self-Love And The Judicial Power To Appoint A Special Prosecutor Symposium On Special Prosecutions And The Role Of The Independent Counsel, James A. Cohen

Faculty Scholarship

Judicial appointment of private attorneys as special prosecutors has occurred and is permitted to occur in a variety of contexts other than when the executive branch is faced with a potential or actual conflict of interest. Until recently, the Second Circuit Court of Appeals and, of course, district courts within the Second Circuit, have interpreted Rule 42(b) of the Federal Rules of Criminal Procedure to permit judicial appointment of a private attorney to prosecute conduct allegedly violative of a court order as criminal contempt. Courts have been most active in appointing private attorneys as special prosecutors in cases involving counterfeit …

Gray Market Goods: A Lighter Shade Of Black Symposium: The Controversy Over The Importation Of Gray Market Goods: Is A Resolution Forthcoming, Hugh C. Hansen

Faculty Scholarship

If a street vendor offers a famous brand-name product for a substantially lower price than one would expect, the average consumer's initial reaction might be that the product had been stolen or was "hot" - a product of the black market. While such discounted goods might indeed be stolen, sophisticated consumers have come to expect similar discounts in stores and mail-order houses throughout the country on goods not from the black market but rather from the "gray market." These products, naturally enough, are called "gray market goods" or simply "gray goods." Gray goods are brand-name products manufactured abroad which bear …

The Interpretation Of Means Expressions During Prosecution, R. Carl Moy

Faculty Scholarship

This article briefly explains how the scope of a claim including a means expression is determined both under the PTO view and a strict application of the statutory language. The lack of consensus and current state of the law in the area are illustrated through an analysis of several recent decisions of the Federal Circuit. The policies underlying the PTO and statutory methods of interpreting means expressions during prosecution are examined in an effort to demonstrate that the statutory method more effectively furthers the policies underlying the patent system.

Reforms And Innovations Regarding Authors' And Performers' Rights In France: Commentary On The Law Of July 3, 1985, Jane C. Ginsburg

Faculty Scholarship

Following thirteen months of parliamentary deliberations, on July 3, 1985, France enacted a law which brings major reforms and additions to its copyright act of March 11, 1957. The new law becomes effective on January 1, 1986. Among the French modernizations and innovations discussed in this Article are the new law's provisions regarding: computer software protection and ownership; royalties for home taping of audio and audiovisual works; and the recognition and regulation of "neighboring rights." These provisions extend statutory protection for the contributions of performing artists, and also accord reproduction and performance rights to the producers of phono- and videograms. …

Authors' Rights In France: The Moral Right Of The Creator Of A Commissioned Work To Compel The Commissioning Party To Complete The Work, André Françon, Jane C. Ginsburg

Faculty Scholarship

The French law protecting authors' rights incorporates two distinct regimes of rights, "pecuniary" rights, and "moral" rights. As the denomination indicates, pecuniary rights pertain to the author's economic interests, and provide the author a monopoly in the reproduction and public performance of his work. Moral rights safeguard the author's "personality" interest in his work. Despite the appellation "moral" rights, the author's claims under French law to the security of his personality as expressed in his work are not precatory: moral rights entail several distinct and enforceable interests. These are: the right to make the work known to the public "droit …

Copyright Law, David Goldberg, Jane C. Ginsburg

Faculty Scholarship

In 1983 and 1984 the federal courts continued to interpret the changes in copyright law effectuated by the 1976 Copyright Act. During this period the United States Supreme Court decided its first copyright case since adoption of the 1976 Act. In general, the year's decisions tend to accord expanded copyright protection to authors. Several decisions, however, have provoked or exacerbated uncertainties in a number of areas, including the protection accorded nonfiction works, the "fair use" excuse to copyright infringement, and compliance with the U.S. copyright formality of affixing notice to published copies of a work.

U.S. Software Protection: Problems Of Trade Secret Estoppel Under International And Brazilian Technology Transfer Regimes Note, Joel R. Reidenberg

Faculty Scholarship

This note describes the fundamental aspects of software protection and applies the requisites of U.S. trade secret protection to software. After explaining how the UNCTAD and Brazilian transfer of technology regimes apply to software licensing arrangements, this note argues that software distribution under these regimes estops U.S. trade secret protection by defeating the requisites of secrecy and competitive advantage. Specifically, the effects of the UNCTAD Draft International Code of Conduct on the Transfer of Technology (UNCTAD Code) and the Brazilian technology transfer regulations are analyzed to demonstrate the difficulties posed by legal regimes being considered and already in force in …

An Economic Analysis Of Royalty Terms In Patent Licenses, Michael J. Meurer

Faculty Scholarship

Efficient exploitation of a patent often requires patentees to license users of their inventions. The courts, on the other hand, have proscribed many forms of license agreements and discouraged patent licensing in general, thereby diminishing the efficacy of the patent system as a stimulus to R & D. This negative attitude is attributable to fears that licensing will be used to protect invalid patents and secure illegitimate extensions of monopoly power. Part I of this Note reviews judicial treatment of certain royalty terms in patent licenses, describing the restraints the courts have imposed on the freedom of patentees to license …

Fair Use As Market Failure: A Structural And Economic Analysis Of The Betamax Case And Its Predecessors, Wendy J. Gordon

Faculty Scholarship

In the recent and much publicized Universal City Studios, Inc. v. Sony Corp. of America (Betamax) case, the Court of Appeals for the Ninth Circuit held that persons who make videotapes of copyrighted television programs in the privacy of their homes should be considered to be copyright infringers. Basic to the court's reasoning was a misunderstanding of the "fair use" doctrine. Called "the most troublesome [doctrine] in the whole law of copyright," "fair use" renders noninfringing certain uses of copyrighted material that might technically violate the statute, but which do not violate the statute's basic purposes.

Sabotaging And Reconstructing History: A Comment On The Scope Of Copyright Protection In Works Of History After Hoehling V. Universal City Studios, Jane C. Ginsburg

Faculty Scholarship

This comment examines the Hoehling decision, and attempts a definition, in light of Hoehling and prior decisions, of historical "expression." A definition of historical expression is essential to analysis of an historian's infringement claim. Before the fact-finder determines whether a defendant's work is substantially similar to the historian's work, and if substantially similar, whether the fair use doctrine excuses the apparent infringement, the trial judge must first determine whether, as a matter of law, the portions the historian claims were infringed manifest copyrightable expression. If there is no or insufficient expression, the case closes at the summary judgment stage.

This …

First Amendment Protection For Commercial Advertising: The New Constitutional Doctrine, Thomas W. Merrill

Faculty Scholarship

Governmental regulation of commercial advertising has become a major focus of challenges to established first amendment doctrine. An increasing number of suits have raised constitutional objections to regulations of false or deceptive advertising, regulations of offensive advertising, prohibitions of commercial advertising in certain forums, prohibitions of price advertising for particular products or services, and prohibitions of all advertising for particular products or services.' Until recently, the majority of courts upheld such regulations under the Supreme Court's ruling in Valentine v. Chrestensen that "purely commercial advertising" is unprotected by the first amendment.

In the last two years the Court has subjected …