Law Commons^™

China's New Copyright Law Reforms: A Comparative Analysis, Shruti Rana, Garland Rowland

Shruti Rana

Nations and businesses around the globe have been battling over copyright protection rules, with industrialized nations pressuring developing nations to adopt Western-style copyright regimes. These battles have escalated as copyright piracy grows and developing nations struggle to formulate laws that will protect their own intellectual properties as well as those of industrialized nations. China is at the cutting edge of these debates; in the summer of 2012, China released transformative new proposals to modify its copyright rules. This Article, which we believe is the first in-depth academic piece analyzing China’s new reforms, critiques China’s new proposals and argues that China …

Globalization, Intellectual Property, And Prosperity, Lucas Osborn

Lucas S. Osborn

No abstract provided.

Changing Places: A New Role For Creators In The Digital World, Rodolfo C. Rivas Rea Esq., Maria Alejandra Lopez Garcia Esq.

Rodolfo C. Rivas

The authors provide a brief overview of the author’s role in exploiting their creations and how new technologies have made authors and publishers explore new business models. In the article, the authors take a look at the innovative business models implemented by J.K. Rowling, Stephen King, Radiohead and Frank Ocean amongst others./////////////////////////////////////////////////// Los autores proporcionan una breve descripción de la función del autor en la explotación de sus creaciones y cómo las nuevas tecnologías han obligado a los autores y editores explorar nuevos modelos de negocio. En el artículo, los autores echan un vistazo a los modelos de negocio innovadores …

Transcript: Opening Remarks, Peter Jaszi

Peter Jaszi

No abstract provided.

Acta And Access To Medicines, Sean Flynn, Bijan Madhani

Sean Flynn

The Greens/EFA Internet Core Group in the European Parliament, and a collection of its individual members, commissioned this analysis of potential impacts of the Anti-Counterfeiting Trade Agreement (ACTA) on access to medicines in developing countries.” On the whole, ACTA negotiators created an agreement that shifts international “hard law” rules and “soft law” encouragements toward making enforcement of intellectual property rights in courts, at borders, by the government and by private parties easier, less costly, and more “deterrent” in the level of penalties. In doing so, it increases the risks and consequences of wrongful searches, seizures, lawsuits and other enforcement actions …

Imagining The Law, Christine Farley

Christine Haight Farley

Law’s relations to art--to its creation, its production, and dissemination, its restriction as well as to commercial and contractual agreements about art works—are as multiform and complex as the category of art itself. Acknowledging that there is no discrete body of law that governs art, the author defines art law as “the survey of legal issues raised by art, artist, and the art world” and surveys four central themes: the law as art, the law of art, the law of creativity, and the collision of art and law. Any legal dispute about art usually evokes a plea for special legal …

“One For All: The Problem Of Uniformity Cost In Intellectual Property Law.” American University Law Review 55, No.4 (May 2006): 845-900., Michael W. Carroll

Michael W. Carroll

Intellectual property law protects the owner of each patented invention or copyrighted work of authorship with a largely uniform set of exclusive rights. In the modern context, it is clear that innovators' needs for intellectual property protection vary substantially across industries and among types of innovation. Applying a socially costly, uniform solution to problems of differing magnitudes means that the law necessarily imposes uniformity cost by underprotecting those who invest in certain costly innovations and overprotecting those with low innovation costs or access to alternative appropriability mechanisms. This Article argues that reducing uniformity cost is the central problem for intellectual …

Is The Jewish Tradition Intellectual Property?, Roberta R. Kwall

Roberta R Kwall

Intellectual Property And Employee Selection, Elizabeth A. Rowe

Elizabeth A Rowe

In today’s marketplace, companies from Disney to Hooters are increasingly integrating their image into the service that they provide. This has come to be known as “branded service.” The human wearing the trade dress merges with the brand image. When a company chooses this strategy to differentiate itself from its competitors in the marketplace, it will often incorporate some intellectual property, and the result then necessarily influences hiring decisions. If a business decides not to hire a prospective employee because she does not fit the company’s image, and that decision is challenged under the antidiscrimination laws, to what extent should …

Untold Stories In South Africa: Creative Consequences Of The Rights Clearance Culture For Documentary Filmmakers, Sean M. Flynn, Peter A. Jaszi

Peter Jaszi

This report summarizes research on the perceptions of South African documentary filmmakers about copyright clearance requirements and the effect of such requirements on their work. This work was performed in the context of a larger project exploring how lessons learned from “best practices” projects with documentary filmmakers in the U.S. can help their counterparts in other countries identify and overcome barriers to effective film making posed by escalating copyright clearance requirements.

Will Fda Data Exclusivity Make Biologic Patents Passé?, Vincent J. Roth Esq

Vincent J Roth Esq

Much controversy has ensued over the current 12 year data exclusivity period afforded biosimilars pursuant to the Biologics Price Competition and Innovation Act of 2009 (the “BPCI”) that was recently enacted in March 2010, as part of President Obama’s Patient Protection and Affordable Care Act (the “PPACA”), to create a biosimilar market in the US. In fact, the BPCI, itself, has been controversial and just barely survived judicial scrutiny when the US Supreme Court upheld the PPACA on June 28, 2012 in a 5-4 vote. Many commentators speculate whether data exclusivity will overtake patents as the preferred method of intellectual …

A Conversation On Judicial Decision-Making, Robin Feldman

Robin C Feldman

Both breathtakingly broad and minutely particular, the doctrine of patentable subject matter asks us to consider which innovations are of the type for which we might grant protection. Do we include living creatures, for example, or genes? Are computer algorithms included, and just what is an algorithm anyway? These are the types of questions that the Supreme Court has considered in a number of recent cases on patentable subject matter.

Looking closely at the recent cases, a fascinating conversation emerges between the Supreme Court and the Federal Circuit. It is a conversation not just about the nature of patents, but …

Intellectual Property Wrongs, Robin Feldman

Robin C Feldman

Intellectual property has become a pervasive presence in society. Seeping into every nook and cranny of American life, intellectual property casts a protective haze over everything from the words of an email to the sequence of genes. Increasingly, these rights are being pressed into the service of schemes that have little to do with the advancement of societal goals and much to do with societal waste. What do we, as a society, do when the rights that we have created with such lofty goals and noble heart are diverted toward less admirable pursuits, that is, when IP rights become the …

Spectrum Rights For Complementary Connectivity, Sarah Oh

Sarah Oh

In spectrum policy, regulators define legal certainties to withstand the dynamics of technology change. Coordinated networks of wireless radios – over-the-air television antennas, 4G LTE mobile broadband, WiFi nodes, satellite dishes, GPS chips, and government devices – each depend on independent rulemakings to provide degrees of operational certainty. Yet innovative technologies can layer noise across radio constituencies with flexibility, as engineers rightly claim, if minds meet in economic alignment.

The stubborn challenge is a sequential one, as hardware design relies on existing knowledge and future uncertainty, with necessary conditions to stabilize emission patterns and harmful interference expectations. The state of …

Rules Versus Standards: Competing Notions Of Inconsistency Robustness In Patent Law, David S. Olson, Stefania Fusco

David S. Olson

This Article applies a new paradigm from the field of computer science—inconsistency robustness (IR)—in order to analyze the competing ways in which the Supreme Court and Federal Circuit craft patent law standards and rules. The IR paradigm is a shift from the previous paradigm of inconsistency elimination. The new IR paradigm recognizes that modern, complex information systems must perform notwithstanding persistent and continuous inconsistencies. The focus on IR encourages system designers to recognize the reality of persistent inconsistency when building robust systems that can perform reliably. Legal systems regularly process a great deal of complexity and inconsistency, and thus, by …

Necessity Is The Mother, But Protection May Not Be The Father Of Invention: The Limited Effect Of Intellectual Property Regimes On Agricultural Innovation, A. Bryan Endres, Carly E. Giffin

A. Bryan Endres

Standard innovation theory assumes that intellectual property protection is a prerequisite to the development of technological advances. Stretching back to the writing of the Constitution, a strong intellectual property system, comprised of both laws that establish intellectual property protection and a judicial or other adjudicative system to enforce the property right, has been considered necessary to stimulate innovation for the benefit of society. While not directly challenging this traditionally held belief, the authors used empirical data to test the assumption in the context of agriculture. This paper analyzed twenty years of agricultural production data from Argentina, Brazil, China, India, and …

Mistaken Assumptions: The Roots Of Stanford V. Roche In Post-War Government Patent Policy, Sean M. O'Connor

Sean M. O'Connor

The Bayh-Dole Act of 1980 was built on a mistaken assumption that “contractors”—recipients of federal funding—were securing assignments of inventions from their employees. The roots of this assumption go back to a 1947 Attorney General report on government patent policy that glossed over its own detailed finding that universities were in many cases not doing so. Because other types of contractors, including private firms and nonprofit research institutions, generally were securing title, the report concluded that “most” contractors were doing so. The report itself was the culmination of a century of confusing and conflicting legal developments with regard to both …

Trademark Owner As Adverse Possessor, Jake Linford

Jake Linford

There is an ongoing debate over whether or not a trademark is “property,” and what type of rights a trademark properly secures. Some scholars assert that rules and justifications developed to handle rights in real property are generally a poor fit for intellectual property regimes, and for trademark protection in particular. Others respond that a unified theory of property should be able to account for both real and intellectual property. This article takes the middle course and approaches the issue by mining the analogy between the acquisition of trademark protection and the doctrine of adverse possession.

Courts and scholars have …

"Offer To Sell" As A Policy Tool, Lucas S. Osborn

Lucas S. Osborn

Gone are the days when the term “offer” is confined to first-year contracts courses and the intricacies of contract formation. The offer concept has quietly migrated throughout the law. It now regulates behavior in areas as diverse as criminal law, environmental law, securities law, and intellectual property law. Despite its wide diffusion, the offer concept remains largely unstudied as a legal concept outside of its contract-law environment. This Article begins to fill that gap. The Article begins by deconstructing the meaning of a traditional contract-law “offer” to determine its policy role in contract law, and then compares that role with …

Transcending The Tacit Dimension: Patents, Relationships, And The Industrial Organization Of Technology Transfer, Peter Lee

Peter Lee

As a key driver of innovation and economic growth, university-industry technology transfer has attracted significant attention. Formal technology transfer, which encompasses patenting and licensing university inventions, is often characterized as proceeding according to market principles. According to this dominant conception, patents help commodify academic inventions, which universities then advertise and transfer to private firms in licensing markets.

This Article challenges and refines this market-oriented view of technology transfer. Drawing from empirical studies, it shows that effective technology transfer often involves long-term personal relationships rather than discrete market exchanges. In particular, it explores the significant role of tacit, uncodified knowledge in …

Ethics In Intellectual Property Negotiations: Issues And Illustrations, Lisa A. Dolak

Lisa A Dolak

Negotiating – formally or informally – is a characteristic aspect of law practice. The requisite skills are acquired “on the job” and, for some, via the formal study of negotiation processes and attributes. The negotiator has much to consider, including the client’s goals and interests, likely litigation outcomes should negotiations fail or any ultimate agreement be breached, and what the counterparty is likely seeking to accomplish.

The challenges include negotiating within the limits imposed by the ethics rules. This paper identifies key authorities relevant to negotiation ethics and illustrates their operation in the context of hypotheticals based on intellectual property …

Best Practices For Drafting University Technology Assignment Agreements After Filmtec, Stanford V. Roche, And Patent Reform, Parker Miles Tresemer

Parker Tresemer

Since the end of World War II, federally funded universities and private companies have been an integral part of continued American innovation and technological production. However, like most rational economic actors, universities and private companies are only willing to invest in federally funded technologies if they are guaranteed some sort of exclusive return on their investment. By granting federal contractors exclusive patent rights to their employee’s federally funded inventions, the Bayh-Dole Act provided the necessary incentives for private sector investment in federally funded technologies. However, case law subsequent to Bayh-Dole’s enactment has significantly undermined the system of incentives Congress intended …

Ethics In Intellectual Property Negotiations: Issues And Illustrations, Lisa A. Dolak

Lisa A Dolak

Negotiating – formally or informally – is a characteristic aspect of law practice. The requisite skills are acquired “on the job” and, for some, via the formal study of negotiation processes and attributes. The negotiator has much to consider, including the client’s goals and interests, likely litigation outcomes should negotiations fail or any ultimate agreement be breached, and what the counterparty is likely seeking to accomplish.

The challenges include negotiating within the limits imposed by the ethics rules. This paper identifies key authorities relevant to negotiation ethics and illustrates their operation in the context of hypotheticals based on intellectual property …

Navigating The Uncharted Waters Of Teaching Law With Online Simulations, Ira Steven Nathenson

Ira Steven Nathenson

The Internet is more than a place where the Millennial Generation communicates, plays, and shops. It is also a medium that raises issues central to nearly every existing field of legal doctrine, whether basic (such as Torts, Property, or Contracts) or advanced (such as Intellectual Property, Criminal Procedure, or Securities Regulation). This creates tremendous opportunities for legal educators interested in using the live Internet for experiential education. This Article examines how live websites can be used to create engaging and holistic simulations that tie together doctrine, theory, skills, and values in ways impossible to achieve with the case method. In …

Best Practices For The Law Of The Horse: Teaching Cyberlaw And Illuminating Law Through Online Simulations, Ira Steven Nathenson

Ira Steven Nathenson

In an influential 1996 article entitled "Cyberspace and the Law of the Horse," Judge Frank Easterbrook mocked cyberlaw as a subject lacking in cohesion and therefore unworthy of inclusion in the law school curriculum. Responses to Easterbrook, most notably that of Lawrence Lessig in his 1999 article "The Law of the Horse: What Cyberlaw Might Teach," have taken a theoretical approach. However, this Article—also appropriating the “Law of the Horse” moniker—concludes that Easterbrook’s challenge is primarily pedagogical, requiring a response keyed to whether cyberlaw ought to be taught in law schools. The Article concludes that despite Easterbrook’s concerns, cyberlaw presents …

Patent Cases And Jurisdiction Controversies, Amelia Smith Rinehart

Amelia Smith Rinehart

No abstract provided.

Toward A Limited Right Of Publicity: An Argument For The Convergence Of The Right Of Publicity, Unfair Competition & Trademark Law, Andrew Beckerman Rodau

Andrew Beckerman Rodau

The right of publicity, the newest type of intellectual property, allows a person to control commercial use of his or her identity. The scope of the right has expanded significantly because many courts and commentators have misinterpreted it by viewing it as a pure property right justified by a labor or unjust enrichment theory. It should be evaluated in light of the utilitarian justification for intellectual property law. Rewarding people by allowing them to monetize their public persona is not the goal. The goal is to incentivize individuals to engage in creative endeavors for the benefit of the public. An …

A Rollicking Band Of Pirates: Licensing The Exclusive Right Of Public Performance In The Theatre Industry, Shane D. Valenzi

Shane D Valenzi

With ticket prices on Broadway at an all-time high, amateur and regional theatres are the only venues for theatrical productions to which most Americans are exposed. Licensing these performance rights—known as “stock and amateur rights”—is the primary source of income for many playwrights, even for those whose plays flopped at the highest level. However, the licensing houses responsible for facilitating these transactions frequently retain and exercise the ability to issue exclusive performance licenses to certain large regional theatres. This practice limits public access to particular works and restricts playwrights’ potential earnings in those works. Though this behavior does not amount …

Images In/Of Law, Jessica M. Silbey

Jessica Silbey

The proliferation of images in and of law lends itself to surprisingly complex problems of epistemology and power. Understanding through images is innate; most of us easily understand images without thinking. But arriving at mutually agreeable understandings of images is also difficult. Translating images into shared words leads to multiple problems inherent in translation and that pose problems for justice. Despite our saturated imagistic culture, we have not established methods to pursue that translation process with confidence. This article explains how images are intuitively understood and yet collectively inscrutable, posing unique problems for resolving legal conflicts that demand common and …

Intellectual Property Rights And Detached Human Body Parts, Justine Pila

Justine Pila

This paper responds to an invitation by the editors to consider whether the intellectual property (IP) regime suggests an appropriate model for protecting interests in detached human body parts. It begins by outlining the extent of existing IP protection for body parts in Europe, and the relevant strengths and weaknesses of the patent system in that regard. It then considers two further species of IP right of less obvious relevance. The first are the statutory rights of ownership conferred by domestic UK law in respect of employee inventions, and the second are the economic and moral rights recognized by European …