Law Commons^™

Laying The Foundation For Copyright Policy And Practice In Canadian Universities, Lisa Di Valentino

Electronic Thesis and Dissertation Repository

Due to significant changes in the Canadian copyright system, universities are seeking new ways to address the use of copyrighted works within their institutions. While the law provides quite a bit of leeway for use of copyrighted materials for educational and research purposes, the response by Canadian universities and related associations has not been to fully embrace their legal rights – rather, they have taken an approach that places emphasis on risk avoidance rather than maximizing use of materials, unlike their American counterparts. In the U.S., where educational fair use is arguably less flexible in application than fair dealing, there …

Open Source Tactics: Bargaining Power For Strategic Litigation, James Skelley

Chicago-Kent Journal of Intellectual Property

No abstract provided.

A Realist Approach To Copyright Law's Formalities, Michael W. Carroll

Michael W. Carroll

Rejecting the conventional story that formalities in copyright law were abolished by the Berne Convention, this Article demonstrates that privately administered systems of formalities play a significant role in the administration of copyright law worldwide. Indeed, they must because copyright is designed to support a transaction structure which requires rightsholders who seek to attract licensing partners to go through some formal step to identify themselves and the works in which they have a legal or beneficial interest. Canvassing the landscape of mandatory and voluntary public and private systems of formalities, this article argues that: (1) national policymakers retain more policy …

The Role Of Design Choice In Intellectual Property And Antitrust Law, Stacey Dogan

Faculty Scholarship

When is it appropriate for courts to second-guess decisions of private actors in shaping their business models, designing their networks, and configuring the (otherwise non-infringing) products that they offer to their customers? This theme appears periodically but persistently in intellectual property and antitrust, especially in disputes involving networks and technology. In both contexts, courts routinely invoke what I call a “non-interference principle” — the presumption that market forces ordinarily bring the best outcomes for consumers, and that courts and regulators should not meddle in the process. This non-interference principle means, for example, that intermediaries need not design their networks to …

Justice Between Authors, Dawn C. Nunziato

Journal of Intellectual Property Law

Traditionally, authors' copyright rights have been limited in order to promote the progress of science and the useful arts. However, authors today are increasingly employing additional protective measures that arguably are not subject to such limitations. Even if such extra-copyright measures are not limited like copyright protections, several principles underlying the copyright regime support imposing such limits on authors' rights. In this Article, based upon John Rawls's theory of justice as fairness, I develop a theory of justice between generations of authors. This theory requires that the rights of each generation of authors be limited for the benefit of subsequent …

See Ya Later, Gator: Assessing Whether Placing Pop-Up Advertisements On Another Company's Website Violates Trademark Law, Kirsten M. Beystehner

Journal of Intellectual Property Law

No abstract provided.

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

David R Hansen

No abstract provided.

American Corporate Copyright: A Brilliant, Uncoordinated Plan, Paul J. Heald

Journal of Intellectual Property Law

No abstract provided.

Falling On Deaf Ears: Is The "Fail-Safe" Triennial Exemption Provision In The Digital Millennium Copyright Act Effective In Protecting Fair Use?, Woodrow Neal Hartzog

Journal of Intellectual Property Law

This Article examines whether the "fail-safe" triennial exemption provision of the DMCA is effective for its intended purpose: to serve as a countermeasure to the DMCA's anti-circumvention provisions by protecting the ability of the public to engage in non-infringing uses of copyrighted works.

Ultimately, this Article concludes that there are too many faults in both the structure and the execution of the rule-making provision to meaningfully counteract the adverse effects of the anti-circumvention provisions of the DMCA. Specifically, the rule-making procedure explicitly prohibits exemptions to a class based on the use of the work. This amounts to a rejection of …

Martha Graham, Professor Miller And The "Work For Hire" Doctrine: Undoing The Judicial Bind Created By The Legislature, Nancy S. Kim

Journal of Intellectual Property Law

The current work for hire doctrine, as embodied by 17 U.S.C. Sections 101 and 201 and interpreted by the judiciary, provides a default rule of copyright ownership in favor of employers where a work is created by an employee in the scope of employment. In the absence of a written agreement, a finding that an engagement is a work for hire under the statute automatically results in all ownership being vested in the employer. This result often contradicts business norms and the understanding of one or both of the parties. In this Article, the author advocates abolishing the all-or-nothing concept …

The Price Of Social Norms: Towards A Liability Regime For File-Sharing, Daniel J. Gervais

Journal of Intellectual Property Law

The paper starts by asking whether P2P file-sharing of music can be stopped. Based on a discussion of (a) the interaction among law (regulation), technology and the market and (b) relevant social norms, the paper takes the view that it may not be possible to stop file-sharing. The paper then turns to an analysis of the economics and structure of a viable licensing model that could be implemented now without legislative or technological changes. The paper argues that P2P licensing could be good business. The paper ends with a brief look at (a) whether the licensing model could be exported …

Aesthetic Nondiscrimination & Fair Use, Brian L. Frye

Law Faculty Scholarly Articles

While courts do not consider the aesthetic value of an element of a work in determining whether it is protected by copyright, they do consider the aesthetic value of the use of a copyrighted element of a work in determining whether that use is a fair use. This asymmetry improperly and inefficiently discriminates in favor of copyright protection and against fair use. Moreover, the fair use “transformativeness” inquiry discriminates against marginalized authors, because courts are less likely to appreciate the aesthetic value of their uses of copyrighted works.

Courts should apply the aesthetic nondiscrimination principle to both copyright and fair …

Copyright: Walking The Tightrope, Bethany Kenyon, Elizabeth Dyer

Library Services Faculty Posters

Librarians often struggle with copyright questions from patrons. After winning a copyright consultation with copyright specialist Barbara Ingrassia during the 2015 North Atlantic Health Sciences Libraries (NAHSL) Scholarship Raffle, UNE librarians decided it was high time to conquer our fears and create a tool to help with the balancing act that is Fair Use. This poster describes the development and promotion of a Fair Use Checklist.

Tribute: Elizabeth Chitwood, Jessica L. Haushalter

Vanderbilt Law Review

Elizabeth "Beth" Chitwood was one of the newest members of the Vanderbilt Law Review. Our community mourns her unexpected loss and is grateful for the time we were able to share with her. The following Tribute briefly highlights Beth's contributions to the Vanderbilt Law community and the Vanderbilt Law Review.

Catwalk Copycats: Why Congress Should Adopt A Modified Version Of The Design Piracy Prohibition Act, Laura C. Marshall

Journal of Intellectual Property Law

No abstract provided.

Marketa Trimble Becomes The Inaugural Samuel S. Lionel Professor Of Intellectual Property Law, Marketa Trimble

Nevada Law Journal

No abstract provided.

Statutory Heirs Apparent?: Reclaiming Copyright In The Age Of Author-Controlled, Author-Benefiting Transfers, Tonya M. Evans

West Virginia Law Review

No abstract provided.

A La Recherche Du “Sens” Perdu: Copyrightable Creativity Deconstructed, Thomas M. Byron

Pace Law Review

The primary goal of this article is to show how the concept of “creativity” as defined and applied by courts in copyright cases fails to map any reasonable concept of creativity in certain critical respects. Accordingly, the first charge undertaken here is a deconstructive one—to show the lack of meaningful overlap between the legal definition of creativity and the “actual” meanings of that same term. To undertake this comparison, Part II of this Article focuses on perhaps the more easily determined of these two definitions of the term—“creativity” as defined by courts. Rather than giving an unduly broad berth …

Branded: Trademark Tattoos, Slave Owner Brands, And The Right To Have "Free" Skin, Shontavia Johnson

Michigan Telecommunications & Technology Law Review

Though existing for several millennia in various cultures, body modification through tattooing is becoming more popular in the United States. Twenty percent of Americans have at least one tattoo, and among Millennials this number grows to almost forty percent. As the popularity of tattoos has increased in recent years, so too have questions revolving around concepts of intellectual property and the plausible limitations of any rights stemming therefrom. This Article addresses the implications, for both the tattooist and the tattooed, of using trademarked designations as tattoos. Neither the courts nor Congress have definitively answered the question of how traditional trademark …

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

Carys Craig

This essay explores the important body of scholarship that has emerged on the substance, nature, and role of the public domain in intellectual property law. I offer some concrete definitions of the public domain in the copyright context, identify some ongoing sources of debate in the literature, and highlight some particularly significant voices in public domain discourse. In doing so, my aim is twofold: first, I mean to present a reasonably comprehensive but concise review of the academic public domain movement, which has been directed towards substantiating and politicizing the concept of the public domain, second, I hope to re-situate …

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 …

Out Of Tune: Why Copyright Law Needs Music Lessons, Carys Craig

Carys Craig

This chapter offers a critical analysis of copyright law that integrates insights from music. The authors argue that the unique qualities of musical works magnify the mismatch between creative practices and copyright doctrine, and suggest that an interdisciplinary analysis can shine a revealing light on both the problem and potential paths to improvement. Beginning with an overview of copyright doctrine in Canada in respect of musical works and music infringement claims, the authors then borrow analytical concepts from the discipline of music theory to problematize copyright’s “reasonable listener” test for determining substantial copying. Using a specially-designed musical composition, the authors …

Jay-Z Has 99 Problems But A Sample Ain’T One, Rebecca Knight

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Copyrightability Of Music Compilations And Playlists: Original And Creative Works Of Authorship?, Marc A. Fritzsche

Pace Intellectual Property, Sports & Entertainment Law Forum

Music compilations and playlists have a common nucleus of an act of gathering songs and ordering them. Their selection and arrangement can be decisive of the success and therefore can be valuable. And here is where the legal issues about their ownership arise: Are music compilations and playlists protectable under the regime of Copyright Law? This article will discuss the legal and practical issues connected with that question. Thereby, it will consider the United States, Europe in general and also the United Kingdom and Germany in particular. The individual legal systems and statutes will be analyzed, as well as the …

Is Copyright Evolving Or Mutating? What American Broadcasting Cos. V. Aereo, Inc. Says About U.S. Copyright Law In The Twenty-First Century, Allison Davenport

The Journal of Business, Entrepreneurship & the Law

In this article, I will look in-depth at the case of American Broadcasting Cos. v. Aereo, Inc. (Aereo). Aereo centers on an alleged infringement of American Broadcasting Company's (ABC)'s public performance right that was achieved through a complicated technological process meant to circumvent the law. In its opinion, the Supreme Court of the United States tries to stretch the language of the Copyright Act to apply to new technology by analogizing it with more familiar processes, while the dissent calls for reform to come from Congress, not the courts. Before my discussion of the Aereo decision, I will discuss the …

Copyright’S Other Functions, Margaret Chon

Chicago-Kent Journal of Intellectual Property

This response to a keynote speech by Judge Margaret McKeown explores some dimensions of copyright in addition to its dominant function as a set of market-facilitating exclusive rights. The recent possible trend towards protecting privacy and other non-commercial concerns via copyright law is not necessarily inconsistent with its historical usages, does not necessarily threaten freedom of expression and may further important privacy policies. The balance of these competing policies is shifting, especially in an environment of proliferating digital content where cyber civil rights may need further development in response to cyberbullying. It examines the specific case of non-consensual pornography as …

Suspect Assertions Of Copyright, Edward Lee

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Fair Use’S Unfinished Business, Rebecca Tushnet

Chicago-Kent Journal of Intellectual Property

No abstract provided.

The Challenges Of Following Good Advice About Copyright And The First Amendment, Alfred C. Yen

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Sherlock Holmes & The Case Of The Contested Copyright, Jessica L. Malekos Smith

Chicago-Kent Journal of Intellectual Property

For generations, Sir Arthur Conan Doyle’s novels and short stories on the adventures of Sherlock Holmes have captivated the minds of readers and fueled a lucrative intellectual property market. The historical trajectory of international copyright protections to this literary canon, however, is an equally intriguing, if not mysterious, page-turner. This Note explores the procedural history of Klinger v. Conan Doyle Estate, Ltd., and examines how the literary characters of Sherlock Holmes and Dr. John H. Watson can simultaneously exist in the public domain, while certain story elements still remain under copyright protection in the United States until 2022.