Law Commons^™

Knowledge And Education: Pro-Access Implications Of New Technologies, Dalindyebo Shabalala

School of Law Faculty Publications

This book examines the social impact of intellectual property laws. It addresses issues and trends relating to health, food security, education, new technologies, preservation of bio-cultural heritage and contemporary challenges in promoting the arts. It explores how intellectual property frameworks could be better calibrated to meet socio-economic needs in countries at different stages of development, with local contexts and culture in mind. A resource for policy-makers, stakeholders, non-profits and students, this volume furthermore highlights alternative modes of innovation that are emerging to address such diverse challenges as neglected or resurgent diseases in developing countries and the harnessing of creative possibilities …

The Pros And Cons Of Gene Patents, Chester S. Chuang, Denys T. Lau

Publications

The debate over human gene patents was recently reignited by New York federal Judge Robert Sweet, when he found isolated human gene sequences unpatentable in Association for Molecular Pathology v. U.S. Patent and Trademark Office , 702 F.Supp.2d 181 (S.D.N.Y. 2010). An appeal of the decision is pending, and in October, the U.S. Department of Justice filed an amicus curiae brief in the case arguing that such gene sequences should not be patentable, contradicting long-standing practices of the United States Patent and Trademark Office. Given the potent impact of a possible gene patent ban on gene-based medical therapies and the …

Resale Price Maintenance: Consignment Agreements, Copyrighted Or Patented Products And The First Sale Doctrine, Herbert J. Hovenkamp

All Faculty Scholarship

The rule of reason adopted for resale price maintenance in the Supreme Court’s Leegin decision, which upset the century old Dr. Miles rule of per se illegality, requires some reconsideration of a number of issues about antitrust treatment of RPM. Under the old per se rule, bona fide “consignment” agreements were not covered by Section 1 of the Sherman Act at all because there was said to be no qualifying “agreement” between the supplier and the dealer. Rather the dealer was simply said to be acting as an agent of the seller. However, insofar as RPM produces competitive dangers, such …

Fair Use Challenges In Academic And Research Libraries, Peter Jaszi

Copyright, Fair Use & Open Access

Academic and research libraries are key players in the generation and propagation of knowledge in the U.S., and their interpretation of the balancing features of copyright is critical to the quality of research, teaching, and learning they support. Approaches and methods for research, teaching, and learning are changing rapidly with opportunities presented by digitization and Internet communication. Academic and research librarians need and use the balancing features of copyright—including exemptions listed in Sections 108 and 110 of the Copyright Act, as well as fair use (codified in Section 107)—in order to accomplish the routine tasks of their profession. This report …

Judges Playing Jury: Constitutional Conflicts In Deciding Fair Use On Summary Judgment, Ned Snow

Faculty Publications

Issues of fair use in copyright cases are usually decided at summary judgment. But it was not always so. For well over a century, juries routinely decided these issues. The law recognized that fair use issues were highly subjective and thereby inherently factual — unfit for summary disposition by a judge. Today, however, all this has been forgotten. Judges are characterizing factual issues as purely legal so that fair use may be decided at summary judgment. Even while judges acknowledge that reasonable minds may disagree on these issues, they characterize the issues as legal, preventing them from ever reaching a …

Transparency Soup: The Acta Negotiating Process And "Black Box" Lawmaking, David S. Levine

Joint PIJIP/TLS Research Paper Series

The negotiations of the Anti-Counterfeiting Trade Agreement (ACTA) have been marred by a level of attempted secrecy heretofore unseen in international intellectual property lawmaking. Simultaneously, the Freedom of Information Act (FOIA) has been used in several significant national contexts to prevent the disclosure of data and information in ways that call into question its efficacy as an effective regulation of governmental knowledge. This paper seeks to tie together these two recent developments in order to (a) prevent future international intellectual property law negotiations from being unduly secret and (b) encourage Congress to consider reforming FOIA in light of current public …

9th Annual Conference On Recent Developments In Intellectual Property Law & Policy, Marc Greenberg, William T. Gallagher, Chester S. Chuang

Intellectual Property Law

Conference agenda and booklet.

From Music Tracks To Google Maps: Who Owns Computer-Generated Works?, Mark Perry, Thomas Margoni

Law Publications

Increasingly the digital content used in everyday life has little or no human intervention in its creation. Typically, when such content is delivered to consumers it comes with attached claims of copyright. However, depending on the jurisdiction, approaches to ownership of computer-generated works vary from legislated to uncertain. In this paper we look at the various approaches taken by the common law, such as in Canada, and the legislative approach taken in the United Kingdom. The options for how computer-generated works may be treated and suggestions for their best placement in copyright are discussed.

Patenting Human Genes: The Myriad Controversy, Chester S. Chuang, Denys T. Lau

Publications

The controversy over human gene patents was reignited in March 2010 when a US Federal District Court decided that isolated human gene sequences are not patentable. An appeal is pending, although the US Department of justice filed a friend-of-the-court brief in the case in late October, arguing that such gene sequences should not be patentable. Because this case may eventually find its way to the US Supreme Court, the ruling could have significant implications for gene-based medical therapies and for the biotechnology industry overall. It is therefore important to assess both the past and present context of this controversy, taking …

The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh

All Faculty Scholarship

‘Common law intellectual property’ refers to a set of judge-made legal regimes that create exclusionary entitlements in different kinds of intangibles. Principally the creation of courts, many of these regimes are older than their statutory counterparts and continue to co-exist with them. Surprisingly though, intellectual property scholarship has paid scant attention to the nuanced law-making mechanisms and techniques that these regimes employ to navigate through several of intellectual property law’s substantive and structural problems. Common law intellectual property regimes employ a process of rule development that this Article calls ‘pragmatic incrementalism’. It involves the use of pragmatic and minimalist techniques …

Speech In The Role Of Fiduciary Law And Trust In The Twenty-First Century, Wendy J. Gordon

Scholarship Chronologically

As someone who is not a specialist in the area, I am grateful to be included in today's conference. I wanted to be here to mark the admiration I have for Professor Frankel. Like Ken Simons, I have benefited from Tamar's knowledge base which is both deep and wide, her lively and inexhaustible curiosity, her imagination, and the immense intellectual stimulation she inevitably provides. Her new book under discussion today reveals some of her extraordinary powers, in its skillful use of materials from sources as diverse as Hammurabi and Grotius, from histories ancient and modem, traditions religious and secular, and …

Another Look At Bill C-32 And The Access Copyright Tariff: Still Double Trouble For Higher Education, Samuel E. Trosow

FIMS Presentations

Earlier this year, the government tabled Bill C-32, proposed amendments to the Copyright Act. Following a consultation process, the Bill is widely recognized as more reasonable than its predecessor, Bill C-61. On the positive side, the bill would expand fair dealing to explicitly include "education". On the other hand, the digital locks provisions of the Bill are fundamentally flawed and override many existing and proposed users rights. Also this year, Access Copyright filed a proposed tariff for the post-secondary education sector with the Copyright Board. The proposal, which includes a drastic increase in costs as well as numerous new reporting …

Copyright And Author Agreements For Open Access Law Journals, Benjamin J. Keele

Library Staff Publications

No abstract provided.

What Bill C-32 Misses: Copyright In Academic Life..., Margaret Ann Wilkinson

Law Presentations

No abstract provided.

Explaining The Demise Of The Doctrine Of Equivalents, David L. Schwartz

All Faculty Scholarship

This article provides a novel theoretical model and extensive empirical evidence to explain the decline of a historically important patent law doctrine known as the “doctrine of equivalents.” In recent years, distinguished academics have studied the doctrine of equivalents. While these scholars noted that the doctrine of equivalents had decreased in its successful use and provided some grounds for the decline, none clearly explained why. As such, the cause and precise mechanism behind the so-called “demise” of the doctrine of equivalents have largely remained a mystery.

This article explains that the demise occurred because of two complementary forces discussed for …

Collaborative Copyright--Or Copyright Is Not Just A Library Issue, Susanne Clement, Jennifer Duncan, Betty Rozum

Library Faculty & Staff Presentations

Copyright law does not change often; the technology that allows us to use copyrighted works changes all the time. Faculty often assume fair use covers all use of copyrighted material in their classes (both face to face and online) and they become confused and frustrated when they learn of limitations in the electronic environment. Students rarely think about copyright; they are generally unaware of how their actions might infringe the rights of copyright holders or that they themselves might hold these rights in their own works. Librarians have traditionally had some copyright knowledge – after all copyright notices have been …

Making Virtual Copyright Work, Matthew R. Farley

Law Student Publications

This Article proposes measures that attempt to strike the balance between creation and access. The virtual-world community is not likely to persevere with the little copyright protection it currently enjoys. Creativity will dwindle and the rich, energetic settings that make virtual worlds so attractive to businesses and entertainers will follow suit. At the same time, because much of the creativity in virtual worlds is derivative in nature, virtual creators are also unlikely to benefit from strong copyright protections. Therefore, current interpretation of copyright law must be revisited and revised before applying it to virtual worlds. Part I details virtual worlds …

Rights, Privileges, And Access To Information, Alina Ng

Journal Articles

Protecting property rights in creative works represents a classic institutional approach to the specific economic problems of nonrivalness and non-excludability of information. By providing the copyright owner with an enforceable right against non-paying members of society, copyright laws encourage the production and dissemination of literary and artistic works to society for educational purposes. Implicit in the grant of property rights is the assumption that commercial incentives foster creative activity and productivity. In recent years, literary and artistic works have increasingly become the subject matter of exclusive property rights and control, particularly as emerging technologies provide users of creative works with …

The Architectural Works Copyright Protection Act At Twenty: Has Full Protection Made A Difference?, David Shipley

Scholarly Works

Even though our copyright statutes were silent about architecture until 1990, it was well established that plans, blueprints and models were copyrightable writings under the 1909 Act's category of "drawings or plastic works of a scientific or technical character," and then as "pictorial, graphic, and sculptural works" under the 1976 Act. The scope of an architect's copyright protection was, however, quite limited. The unauthorized copying of plans or blueprints constituted infringement, but most authorities concluded that plans were not infringed by using them, without the architect's permission, to construct the building they depicted. Moreover, the prevailing view was that an …

Equity And Efficiency In Intellectual Property Taxation, Xuan-Thao Nguyen, Jeffrey A. Maine

Faculty Publications

This article evaluates the Current US income tax regime governing intellectual property by focusing on the traditional principles of tax policy - tax fairness and efficiency. It highlights the shortcomings of the current tax system in fulfilling both of these tenets.

Acta: Risks Of Third Party Enforcement For Access To Medicines, Brook K. Baker

Joint PIJIP/TLS Research Paper Series

In its current near-final draft form, the Anti-Counterfeiting Trade Agreement [ACTA] being negotiated plurilaterally—and largely secretly—by a self-selected group of countries proposes to allow preliminary and final injunctive relief against third parties (third-party enforcement) to prevent infringement of intellectual property rights and/or to prevent infringing goods from entering into the channels of commerce. There is lingering uncertainty whether the relevant civil enforcement section will apply to the entire range of intellectual property rights or whether patents will be excluded. If patents are excluded, the dangers in ACTA would be reduced but not eliminated—new globalized forms of third-party enforcement would still …

Will Individuals Aboard The Cultural Pirate Ship Be Struck By The Acta's Cannon Ball?, Shalom Andrews

Joint PIJIP/TLS Research Paper Series

Combating internet piracy is a global challenge. Fundamentally, piracy lingers because it has become a culturally acceptable behaviour that is under-enforced. The Anti-Counterfeiting Trade Agreement (ACTA) is the latest enforcement measure aimed at sinking the pirate ship.

The first part of this paper will explore piracy as a cultural phenomenon and how it interacts with Australian civil and criminal law. Pirates, who have awareness that their plundering is wrong, convince themselves that: there are moral grounds for their escapades; there is a government conspiracy to reduce internet freedom; they are fighting globalisation by attacking the corporations who reap disproportionate booty, …

A Definite Claim On Claim Indefiniteness: An Empirical Study Of Definiteness Cases Of The Past Decade With A Focus On The Federal Circuit And The Insolubly Ambiguous Standard, Christa J. Laser

Law Faculty Articles and Essays

This empirical study of patent claim definiteness cases of the past decade makes several novel findings including: (1) slightly more than half of final Federal Circuit definiteness cases hold the asserted claims not indefinite; (2) the percentage of non-Federal Circuit definiteness cases holding claims not indefinite increased approximately 60 percentage points over the ten-year period focused on in this analysis;(3) the Federal Circuit more often held chemical claims not indefinite, but electrical claims indefinite; and (4) the Federal Circuit more often held claims with term clarity issues not indefinite, but claims with means-plus-function issues indefinite. These differences partially result from …

Strategies Under Pressure: Usa-China Copyright Dispute, Dexin Tian, Chin-Chung Chao

Communication Faculty Publications

Purpose – The purpose of this paper is to explore the Chinese and American efforts in keeping the balance of innovation and copyright protection, with an emphasis on China’s strategies under Western, especially American pressure. The research findings are expected to enhance mutual efforts from the two countries to protect copyright and boost innovation and facilitate genuine communication between both sides in their decade-long intellectual property right (IPR) disputes.

Design/methodology/approach – For data collection, this study adopted in-depth interviews of 45 participants who were either copyright holders as publishers and authors, or ordinary consumers in China. Under the theoretical guidance …

The Global Ip Upward Ratchet, Anti-Counterfeiting And Piracy Enforcement Efforts: The State Of Play, Susan Sell

Joint PIJIP/TLS Research Paper Series

Proponents of an IP maximalist agenda increasingly have been rebuffed in recent years. Developing country governments, NGOs, and Access to Knowledge (A2K) advocates have thwarted their efforts to ratchet up standards of intellectual property protection in multilateral intergovernmental forums such as the World Trade Organization, the World Intellectual Property Organization, and the World Health Organization. A2K advocates challenge the premises behind ever higher and broader intellectual property protection and seek, if not a rolling back of IP rights, at the very least a standstill. They argue that in the balance between rights and obligations, IP maximalists assert their rights without …

Where Copyright Enforcement And Net Neutrality Collide - How The Eu Telecoms Package Supports Two Corporate Political Agendas For The Internet, Monica Horten

Joint PIJIP/TLS Research Paper Series

This paper discusses a change to European Union (EU) telecoms law which de facto permits operators to impose restrictions on network traffic, and which enables such restrictions to be imposed for the purposes of copyright enforcement—thus it simultaneously facilitates two different policy agendas from the copyright and telecoms industries—‘three-strikes’ as well as ‘traffic management.’ The mechanism is a provision concerning users’ contracts, supported by generic provisions addressed to EU governments and regulators. The change went into law in late 2009, within the so-called ‘Telecoms Package,’ which, together with the E-commerce directive, establishes the EU legal framework for telecoms networks. In …

Operating Efficiently Post-Bilski By Ordering Patent Doctrine Decision-Making, Dennis D. Crouch, Robert P. Merges

Faculty Publications

Now that the Supreme Court has decided Bilski v. Kappos, there is an enormous amount of speculation about the case’s impact on patent applicants, litigants, and other participants in the patent system. Most of the commentary is concerned with the holding in Bilski, how this holding will be applied by courts and the Patent Office, and ultimately, the effect of the holding on inventors, and those who hold and seek patents.

From Knowledge To Ideas: The Two Faces Of Innovation, James Bessen

Faculty Scholarship

Innovative ideas have unique properties arising from low communication costs. But ideas come from knowledge that is costly to communicate. “Formalizing” knowledge — codifying, developing standards, etc. — reduces these costs. In a simple model, formalization is associated with changes in the nature of competition between two equilibrium regimes. In one, knowledge is formalized, new technology replaces old and patents increase innovation incentives. In the other, knowledge is not formalized, old technology coexists with new, patents decrease innovation incentives and firms sometimes freely exchange knowledge. The equilibrium changes as technology improves over a life-cycle, affecting firm strategy, innovation policy, geographic …

The Intel And Microsoft Settlements, Robert H. Lande

All Faculty Scholarship

This article briefly compares and contrasts the recent U.S. Federal Trade Commission's antitrust settlement with Intel, and the antitrust cases brought against Microsoft. The article praises the FTC's settlement with Intel, and predicts that history will judge it very favorably compared to the settlement by the U.S. Department of Justice of its antitrust case against Microsoft.

Draft Of Beck Lecture - 2010, Wendy J. Gordon

Scholarship Chronologically

I am grateful to the wonderful BU community that has taught me so much, and to those who made this event possible. I thank Dean O'Rourke for hosting this wonderful event, Mary Gallagher, Cornell Stinson and Erin Elwood for organizing it, and I thank you all for coming. I am honored to follow Bill Ryckman in the Chair, a man I admire. Most especially I thank Phil Beck for his generosity to the Boston University School of Law in funding this Chair. It's flattering to me having been chosen its recipient, and flattering to the school that Phil chose us …