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Full-Text Articles in Law
A Reverse Notice And Takedown Regime To Enable Fair Uses Of Technically Protected Copyrighted Works (With J. Reichman & P. Samuelson), Graeme B. Dinwoodie
A Reverse Notice And Takedown Regime To Enable Fair Uses Of Technically Protected Copyrighted Works (With J. Reichman & P. Samuelson), Graeme B. Dinwoodie
Graeme B. Dinwoodie
The WIPO Copyright Treaty (WCT) recognized the need to maintain a balance between the rights of authors and the larger public interest in updating copyright law in light of advances in information and communications technologies. But the translation of this balance into the domestic laws of the United States and European Union has not been fully successful. In the DMCA, Congress achieved a reasonable balance of competing interests in its creation of safe harbors for internet service providers. However, contrary to its apparent intention, Congress failed to achieve a similar balance of interests when establishing new rules forbidding circumvention of …
Lessons From The Trademark Use Debate (With M. Janis), Graeme B. Dinwoodie
Lessons From The Trademark Use Debate (With M. Janis), Graeme B. Dinwoodie
Graeme B. Dinwoodie
In their response to our article Confusion Over Use: Contextualism in Trademark Law, Professors Dogan and Lemley discard more all-encompassing versions of the trademark use requirement. Instead, they seek to delineate and defend a “more surgical form” of trademark use doctrine. In this reply, we demonstrate that the language of the Lanham Act does not impose a trademark use requirement even when that requirement is defined “surgically” and sections 32 and 43(a) are read “fluidly,” as Dogan and Lemley suggest. Moreover, their interpretation still renders section 33(b)(4) redundant and unduly limits appropriate common law development of trademark law. We also …
Foreign And International Influences On National Copyright Policy: A Surprisingly Rich Picture (F. Mcmillan, Ed.), Graeme B. Dinwoodie
Foreign And International Influences On National Copyright Policy: A Surprisingly Rich Picture (F. Mcmillan, Ed.), Graeme B. Dinwoodie
Graeme B. Dinwoodie
National copyright policy, traditionally reflective of domestic cultural and economic priorities, is increasingly shaped by foreign and international influences. In this chapter, I sketch some of the changes in copyright lawmaking that have given rise to this phenomenon. Especially when viewed in historical context, foreign and international influence on the development of copyright law is now quite pervasive – albeit in ways, and effected through a number of institutions, that might appear surprising.
What Linguistics Can Do For Trademark Law, Graeme B. Dinwoodie
What Linguistics Can Do For Trademark Law, Graeme B. Dinwoodie
Graeme B. Dinwoodie
This contribution to an inter-disciplinary book on Trademarks and Brands responds to the work of Alan Durant, a linguist who (in his chapter of the book) provides legal scholars with both a rich understanding of how linguists view terms that are part of the basic argot of trademark law and a potentially vital explanation of the different social functions that word marks might serve. The Response explains why linguistics should matter to trademark law, but also why trademark law might on occasion ignore the precise reality of consumer understanding as might be provided by linguistics. I suggest that, while trademark …
The International Intellectual Property System: Treaties, Norms, National Courts And Private Ordering, Graeme B. Dinwoodie
The International Intellectual Property System: Treaties, Norms, National Courts And Private Ordering, Graeme B. Dinwoodie
Graeme B. Dinwoodie
Although part of the political impetus for international intellectual property law making has long come from the economic gains that particular countries could secure in the global market, the recent situation of intellectual property within the institutional apparatus of the trade regime has been an important factor in the transformation of the classical system of international intellectual property law. This chapter analyses various aspects of this transformation. It suggests that viewing intellectual property through the prism of trade alone offers an incomplete explanation of the changes that have occurred in international intellectual property law making. For example, a full account …
Confusion Over Use: Contextualism In Trademark Law (With M. Janis), Graeme B. Dinwoodie
Confusion Over Use: Contextualism In Trademark Law (With M. Janis), Graeme B. Dinwoodie
Graeme B. Dinwoodie
This paper tackles an intellectual property theory that many scholars regard as fundamental to future policy debates over the scope of trademark protection: the trademark use theory. We argue that trademark use theory is flawed and should be rejected. The adoption of trademark use theory has immediate practical implications for disputes about the use of trademarks in online advertising, merchandising, and product design, and has long-term consequences for other trademark generally. We critique the theory both descriptively and prescriptively. We argue that trademark use theory over-extends the search costs rationale for the trademark system, and that it unhelpfully elevates formalism …
Copyright Lawmaking Authority: An (Inter)Nationalist Perspective On The Treaty Clause (Symposium), Graeme B. Dinwoodie
Copyright Lawmaking Authority: An (Inter)Nationalist Perspective On The Treaty Clause (Symposium), Graeme B. Dinwoodie
Graeme B. Dinwoodie
This contribution to a symposium on Copyright and The Constitution considers whether the Treaty Clause provides an alternative source of copyright lawmaking authority with respect to enactments impermissible under the Copyright Clause. Existing literature suggests three paradigmatic positions on the question. First, some scholars view the Treaty Clause as conferring a power whose content is wholly subservient to the limits of the Copyright Clause. A second group of scholars sees the Treaty Clause as offering an alternative lawmaking authority, but one that is substantially limited by the internal limits of the Treaty Clause. Finally, some commentators and litigants have read …
Diversifying Without Discriminating: Complying With The Mandates Of The Trips Agreement (With R. Dreyfuss), Graeme B. Dinwoodie
Diversifying Without Discriminating: Complying With The Mandates Of The Trips Agreement (With R. Dreyfuss), Graeme B. Dinwoodie
Graeme B. Dinwoodie
Although the technological community was once fairly united in its needs from the patent system, the recent debate over patent reform has made it clear that this is no longer the case. Rather, it has become increasingly difficult to believe that a one–size–fits–all approach to patent law can survive. In this brief contribution to a symposium tackling Diversity in Innovation Policy, we consider the ways in which intellectual property obligations, most notably the TRIPS Agreement, circumscribe the ability of national lawmakers to tailor patent protection to reflect the concerns of different industries. In particular, we propose that TRIPS art. 27, …