Law Commons^™

The End Of Friction - Property Rights And Contract In The Newton World Of On-Line Commerce, Robert P. Merges

Robert P Merges

No abstract provided.

A Fresh Look At Tests For Nonliteral Copyright Infringement, Pamela Samuelson

Pamela Samuelson

Determining whether a copyright has been infringed is often straightforward in cases involving verbatim copying or slavish imitation. But when there are no literal similarities between the works at issue, ruling on infringement claims becomes more difficult. The Second and Ninth Circuits have developed five similar yet distinct tests for judging nonliteral copyright infringement. This Essay argues that each of these tests is flawed and that courts have generally failed to provide clear guidance about which test to apply in which kinds of cases. This Essay offers seven specific strategies to improve the analysis of nonliteral infringements. Courts should do …

Copyright And Freedom Of Expression In Historical Perspective, Pamela Samuelson

Pamela Samuelson

No abstract provided.

Why Copyright Law Excludes Systems And Processes From The Scope Of Its Protection, Pamela Samuelson

Pamela Samuelson

No abstract provided.

The Uneasy Case For Software Copyrights Revisited, Pamela Samuelson

Pamela Samuelson

The author examines the case for copyrighting computer programs in relation to the 1970 article “The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs,” by U.S. Supreme Court Justice Stephen Breyer. The number of programs registered with the Copyright office has reportedly bolstered Breyer's skepticism about such copyright. The risks posed by copyrighting programs were of concern to Breyer. Also assessed is the development of the software industry.

Brief Of Amicus Curiae Academic Authors And Legal Scholars In Support Of Defendants Appellees And Affirmance, Nos. 12-14676-Ff, 12-15147-Ff (April 25, 2013), David R. Hansen, Peter A. Jazsi, Pamela Samuelson, Jason Schultz, Rebecca Tushnet

Pamela Samuelson

No abstract provided.

The Copyright Principles Project: Directions For Reform, Pamela Samuelson

Pamela Samuelson

Evaluates the impact of the Copyrights Principles Project (CPP) 2007, which argues that US copyright law has to adapt to modern technological advances. Suggest that current copyright law does not serve well those it is trying to protect. [IBSSMB]

Computer Programs, User Interfaces, And Section 102(B) Of The Copyright Act Of 1976: A Critique Of Lotus V. Paperback, Pamela Samuelson

Pamela Samuelson

The Supreme Court's landmark ruling "Lotus Development Corp vs Paperback Software International" is critiqued. The ruling did not resolve the issue of whether copyright law protects user interfaces.

The Originality Standard For Literary Works Under U.S. Copyright Law, Pamela Samuelson

Pamela Samuelson

No abstract provided.

The U.S. Digital Agenda At Wipo, Pamela Samuelson

Pamela Samuelson

No abstract provided.

A Preliminary Measure: Retroactive Copyright Term Reduction And The Takings Clause, Eugene V. Beliy

Eugene V Beliy

The current duration of a copyright term under U.S. law is an astounding life of the author plus 70 years. This term length is a product of a series of retroactive extensions enacted by Congress. It is well settled that the term can be retroactively extended--but can it be retroactively reduced? Would Congress violate the Fifth Amendment Takings Clause if it retroactively reduced copyright term without providing just compensation? This paper argues that it would not. First, this paper frames the discussion by analyzing the policy behind Copyright Law and term length. Second, this paper identifies a potential Takings Clause …

Technological Neutrality: (Pre)Serving The Purposes Of Copyright Law, Carys J. Craig

Carys Craig

No abstract provided.

Locking Out Lawful Users: Fair Dealing And Anti-Circumvention In Bill C-32, Carys J. Craig

Carys Craig

This chapter examines the potential impact of the proposed fair dealing and anti-circumvention provisions in Canada’s most recent copyright reform bill, Bill C-32. I suggest that the minimal expansion of the fair dealing defence to cover “new” purposes, as well as the addition of a few new user exceptions, while welcome, is insufficient to ensure the breadth of user defences that the copyright balance demands. Moreover, the extensive protection of technological protection measures without any regard for lawful uses of copyright material has the potential to effectively eviscerate fair dealing in the digital age. Many acts permitted in relation to …

Digital Locks And The Fate Of Fair Dealing In Canada: In Pursuit Of 'Prescriptive Parallelism', Carys J. Craig

Carys Craig

The enactment of anti-circumvention laws in Canada appears imminent and all but inevitable. This article considers the threats posed by technical protection measures and anti-circumvention laws to fair dealing and other lawful uses of protected works, and so to the copyright system more generally. The argument adopts, as its normative starting point, the principle of "prescriptive parallelism" according to which the traditional copyright balance of rights and exceptions should be preserved in the digital environment. Looking to the experiences of other nations, the article explores potential routes towards reconciling technical protection measures with copyright limits, and maintaining a substantive continuity …

The Changing Face Of Fair Dealing In Canadian Copyright Law: A Proposal For Legislative Reform, Carys J. Craig

Carys Craig

No abstract provided.

Reconstructing The Author-Self: Some Feminist Lessons For Copyright Law, Carys J. Craig

Carys Craig

Copyright law currently forces all intellectual production into a doctrinal model shaped by individualistic assumptions about the authorial ideal. To the extent that the truly original author-owner is conceptualized as an individual (and not a function or fiction), he depends upon Enlightenment ideals of individuation, detachment, and unity. A competing view of the author sees her as necessarily engaged in a process of adaptation, translation and recombination. This version of authorship coheres with a view of the individual as socially constituted: her expression is the result of the complex variety of texts and discourses that she encounters (and by which …

Introduction - Copyright, Communication & Culture: Towards A Relational Theory Of Copyright Law, Carys J. Craig

Carys Craig

In this provocative book, Carys Craig challenges the assumptions of possessive individualism embedded in modern day copyright law, arguing that the dominant conception of copyright as private property fails to adequately reflect the realities of cultural creativity. Employing both theoretical argument and doctrinal analysis, including the novel use of feminist theory, the author explores how the assumptions of modern copyright result in law that frequently restricts the kinds of expressive activities it ought to encourage. In contrast, Carys Craig proposes a relational theory of copyright based on a dialogic account of authorship, and guided by the public interest in a …

Putting The Community In Communication: Dissolving The Conflict Between Freedom Of Expression And Copyright, Carys Craig

Carys Craig

This paper is concerned with the relationship between freedom of expression and copyright law — and, more specifically, with what this relationship reveals about the nature and purpose of the copyright interest. I argue that the source of the apparent conflict between copyright and free expression is the prevailing characterization of both as individual rights vested in the liberal subject. The key to dissolving the conflict lies in the recognition of the social values that these rights affirm: the value that we attach to communication, to interaction between members of society and to participation in a social dialogue. If copyright …

The Canadian Public Domain: What, Where, And To What End?, Carys Craig

Carys Craig

No abstract provided.

The Evolution Of Originality In Canadian Copyright Law: Authorship, Reward And The Public Interest, Carys J. Craig

Carys Craig

Originality is a foundational concept in copyright law: it defines the works to which copyright attaches and delineates the scope of protection they receive. The Supreme Court of Canada, in its recent ruling in CCH Canadian Ltd. v. Law Society of Upper Canada, appears to have settled the conflict between creativity and sweat-of-the-brow standards for originality, espousing a compromise position requiring "skill and judgment." In this paper, the author aims to locate the evolution of the originality doctrine within the context of a foundational shift in Canadian copyright theory. When "benefiting authors" was copyright's only recognized purpose, originality was determined …

Technological Neutrality: (Pre)Serving The Purposes Of Copyright Law, Carys J. Craig

Carys Craig

In the realm of law, neutrality is widely hailed as a fundamental principle of fairness, justice and equity; it is also, however, widely criticized as a myth that too often obscures the inevitable reality of perspective, interest or agenda.The principle of technological neutrality, recently articulated by the Supreme Court of Canada when applying copyright law to online activities, seems similarly fundamental in the copyright realm — and equally mythical. In what is now dubbed the Supreme Court’s “Copyright Pentalogy” — five copyright judgments released concurrently by the Court in June 2012 — the unprecedented importance accorded by the Court to …

What Is Feminist About Open Access?: A Relational Approach To Copyright In The Academy, Carys J. Craig, Joseph F. Turcotte, Rosemary J. Coombe

Carys Craig

In a context of great technological and social change, existing intellectual property regimes such as copyright must contend with parallel forms of ownership and distribution. Proponents of open access question and undermine the paradigm of exclusivity central to traditional copyright law, thereby fundamentally challenging its ownership structures and the publishing practices these support. In this essay, we attempt to show what it is about the open access endeavour that resonates with a feminist theory of law and society - in other words, we consider what is “feminist” about open access. First, we provide an overview of a relational feminist critique …

Resisting "Sweat" And Refusing Feist: Rethinking Originality After Cch, Carys J. Craig

Carys Craig

In CCH Canadian Ltd. v. Law Society of Upper Canada, the Supreme Court of Canada ostensibly settled the debate between the "sweat school" and the "creativity school" regarding the meaning of copyright's originality requirement. While rejecting a labour-based formulation of the originality standard, the Supreme Court also refused to adopt the "minimal degree of creativity" test established by the U.S. Supreme Court in the famous Feist case. The appropriate threshold for originality, according to the Supreme Court of Canada, "falls between these two extremes" and requires "an exercise of skill and judgment." This paper explores the significance of the "skill …

Locke, Labour, And Limiting The Author’S Right: A Warning Against A Lockean Approach To Copyright Law, Carys J. Craig

Carys Craig

This paper criticizes a Lockean approach to copyright, which sees an author’s right as the natural entitlement to the fruits of her labour. The author’s contention is that the Lockean account mistakenly finds the justification for copyright in the relationship between an author and her work, rather than the persistent presence of this labour-desert rationale in Canadian copyright rhetoric necessarily privileges the interests of the private rights-bearer over the public interest, and so threatens the public policy goals that copyright is intended to further. The author attacks the Lockean copyright theory from two directions. First, she examines the extent to …

Feminist Aesthetics And Copyright Law: Genius, Value, And Gendered Visions Of The Creative Self, Carys J. Craig

Carys Craig

Copyright law is fundamentally concerned with the value of cultural works — both the recognition and the creation of this value. Yet it is seldom acknowledged that copyright law makes or requires any value judgment in the sense of an aesthetic evaluation of copyright’s subject matter. Indeed, it is often emphasized that copyright protects original works of authorship regardless of their quality or merit. That copyright protection demands the satisfaction of only the most minimal of qualitative standards does not, however, dispose of the larger claim that forms the basis of this chapter: our copyright system is dominated by a …

Copyright, Communication And Culture: Towards A Relational Theory Of Copyright Law, Carys Craig

Carys Craig

In this provocative book, Carys Craig challenges the assumptions of possessive individualism embedded in modern day copyright law, arguing that the dominant conception of copyright as private property fails to adequately reflect the realities of cultural creativity. Employing both theoretical argument and doctrinal analysis, including the novel use of feminist theory, the author explores how the assumptions of modern copyright result in law that frequently restricts the kinds of expressive activities it ought to encourage. In contrast, Carys Craig proposes a relational theory of copyright based on a dialogic account of authorship, and guided by the public interest in a …

Copyright: Cases And Commentary On The Canadian And International Law, Second Edition, Barry Sookman, Steven Mason, Carys Craig

Carys Craig

Copyright law grants exclusive rights for limited terms to the authors of musical, literary, dramatic and artistic works. With the shift towards an information economy and the rapid development of digital technologies, copyright is fast becoming one of the most dynamic, critical and controversial areas of Canadian law and policy. This casebook presents extracts from the leading cases from both Canadian and international jurisprudence to illustrate the legal concepts, doctrinal evolution and current approaches to copyright issues. The revised second edition reflects the important case law and statutory amendments that have taken place over the past five years, including the …

The Migration Of The Book Across Territorial Borders: Copyright Implications For Authors In The Digital Economy, Francina Cantatore

Francina Cantatore

Although the USA, Canada, UK, and Australia currently retain territorial copyright laws, with commensurate restrictions on parallel, importation of books, advances in digital technology, and the advent of e-books have caused an involuntary migration of the book across these defined borders. This changing publishing sphere has impacted authors’ copyright protection, with authors struggling to come to grips with breaches of copyright outside the protection of their own borders. Additionally, the extra-territorial publication of books are often in breach of authors’ copyright but difficult to address locally. This article deals with the copyright issues faced by authors once their books enter …

The Right To Read, Lea Shaver

Lea Shaver

Reading – for education and for pleasure – may be framed as a personal indulgence, a moral virtue, or even a civic duty. What are the implications of framing reading as a human right?

Although novel, the rights-based frame finds strong support in international human rights law. The right to read need not be defended as a “new” human right. Rather, it can be located at the intersection of more familiar guarantees. Well-established rights to education, science, culture, and freedom of expression, among others, provide the necessary normative support for recognizing a universal right to read as already implicit in …

Antitrust And Information Technologies, Herbert Hovenkamp

Herbert Hovenkamp

Technological change strongly affects the use of information to facilitate anticompetitive practices. The effects result mainly from digitization and the many products and processes that it enables. These technologies also account for a significant portion of the difficulties that antitrust law encounters when its addresses intellectual property rights. Changes in the technologies of information also affect the structures of certain products, in the process either increasing or decreasing the potential for competitive harm. For example, digital technology affects the way firms exercise market power, but it also imposes serious measurement difficulties. In purely digital markets intellectual property rights are crucial …