Law Commons^™

Copyright And A Synergistic Society, Tracy Reilly

Tracy Reilly

A Positive Externalities Approach To Copyright Law: Theory And Application, Jeffrey L. Harrison

Jeffrey L Harrison

The basic goal of copyright law is, at a general level, fairly well understood, yet the law itself seems untethered to any consistent analytical approach designed to achieve that goal. This Article has two goals. The first is to explain in some detail what copyright law might look like if it reflected economic reasoning. The second is to put to the test the question of whether copyright law is as far out of sync with economic guidelines as White-Smith Music and Eldred suggest. In order to understand the economic approach and the inconsistency of copyright law, as well as the …

Trademark Law And Status Signaling: Tattoos For The Privileged, Jeffrey L. Harrison

Jeffrey L Harrison

The motivations for buying a good or service are highly complex. At the most basic level, people buy goods because of what the goods do or because of the aesthetic elements they embody. More technically, buyers derive utility from the "functional" quality of these goods. Another motivation relates to what the goods "say" about the buyer. Here, the good is a signaling device. Signaling is not new, of course, and can indicate anything from social class to political leanings. This Essay addresses the issue of whether it should be public policy to subsidize this type of person-to-person status signaling. This …

From Vault To Honesty Box: Australian Authors And The Changing Face Of Copyright, Francina Cantatore

Francina Cantatore

Copyright in written work is facing unprecedented challenges in the digital era. The changing face of copyright requires a re-evaluation of the existing norms and theories of copyright as an inanimate phenomenon that is reliant on humans for its adaptations. This article examines authors’ responses to these developments in the context of the philosophical theories underpinning copyright law, current Australian legislative and judicial considerations, and the impact of e-publishing on traditional perceptions of copyright protection. In particular, the article incorporates findings from a research study conducted with Australian authors on their perceptions of the value and meaning of copyright and …

The Conceits Of Our Legal Imagination: Legal Fictions And The Concept Of Deemed Authorship, Alina Ng

Alina Ng

Describing legal fictions as embedded nuggets of information about social reality in the law is not as contradictory as it may sound. Legal fictions reveal important aspects of human society that may not be understood but for the curious metaphors that these fictions portray. The use of legal fictions may, however, obscure important information or fundamental questions about law and its society as it commits legal institutions to set outcomes. These fictions become institutionalized without clear understanding of their function. When that happens, fallacious assumptions about human behavior and social relationships transform into binding principles that set the course for …

Copyright And The Tragedy Of The Commons, Tracy Reilly

Tracy Reilly

Eldred And Lochner: Copyright Term Extension And Intellectual Property As Constitutional Property, Paul M. Schwartz, William Michael Treanor

Paul M. Schwartz

Since the ratification of the constitution, intellectual property law in the United States has always been, in part, constitutional law. Among the enumerated powers that Article I of the Constitution vests in Congress is the power to create certain intellectual property rights. To a remarkable extent, scholars who have examined the Constitution's Copyright Clause have reached a common position. With striking unanimity, these scholars have called for aggressive judicial review of the constitutionality of congressional legislation in this area. The champions of this position--we refer to them as the IP Restrictors--represent a remarkable array of constitutional and intellectual property scholars. …

The Copyrightability Of Nonliteral Elements Of Computer Programs, Julian Velasco

Julian Velasco

No abstract provided.

Addressing The Incoherency Of The Preemption Provision Of The Copyright Act Of 1976, Joseph P. Bauer

Joseph P. Bauer

Section 301 of the Copyright Act of 1976 expressly preempts state law actions that are within the "general scope of copyright" and that assert claims that are "equivalent to" the rights conferred by the Act. The Act eliminated the previous system of common law copyright for unpublished works, which had prevailed under the prior 1909 Copyright Act. By federalizing copyright law, the drafters of the statute sought to achieve uniformity and to avoid the potential for state protection of infinite duration. The legislative history of § 301 stated that this preemption provision was set forth "in the clearest and most …

Nexus Crystals: Crystallizing Limits On Constractual Control Of Virtual Worlds, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Can a video game developer or publisher successfully sue a video game player for copyright infringement for not “playing a game nicely,” “cheating,” or “buying software from a third party”? This article suggests a new reason why it cannot. The founding social contract of the new millennium is the End User License Agreement (EULA), not the U.S. Constitution. Website terms of use (TOU) and software EULAs now have an enormous impact on how citizens must act and how their rights and redresses are defined. EULAs contain not only traditional intellectual property licensing conditions but complicated directives regarding what members of …

Criminal Copyright Enforcement Against Filesharing Services, Benton C. Martin, Jeremiah R. Newhall

Benton C. Martin

The high-profile prosecution of the popular online storage website Megaupload for criminal copyright infringement is the latest in a series of recent criminal prosecutions of online filesharing services. But what pushes a legitimate online file-storing business over the edge to criminal enterprise? How might criminal copyright enforcement differ materially from civil enforcement?

This article answers these questions and suggests guidelines for prosecutorial discretion. After a condensed history of criminal copyright law, we explain why "secondary" theories of infringement apply in the criminal, as well as civil, context and why the DMCA "safe harbor" defense is a red herring in criminal …

The Role Of Copyright In The Protection Of The Environment And The Fight Against Climate Change: Is The Current Copyright System Adequate?, Estelle Derclaye

Estelle Derclaye

At first sight, it may not seem like copyright plays a role in the fight against climate change and more generally the protection of the environment. But in many ways, it does, and it does so with, maybe surprisingly, quite some importance. Indeed, copyright works can be extremely varied. In the environmental field, they can range from eco-friendly architectural plans and buildings, literature (e.g. scientific articles, newspaper or magazine articles, instruction manuals detailing processes that accomplish environmental benefits), charts, diagrams, maps, photographs, even films, about the weather, climate, the size of glaciers, etc., to software and databases used for forecast …

Recent French Decisions On Database Protection: Towards A More Consistent And Compliant Approach With The Court Of Justice’S Case Law?, Estelle Derclaye

Estelle Derclaye

Since the official date of implementation of the Database Directive , namely the 1 January 1998, 14 years have now already passed. During this decade and a half, French courts have handed down around 30 decisions on database protection. Between 1998 and 2004, the year when the Court of Justice of the European Union (CJEU) handed down its first four parallel rulings on the sui generis right , the French case law on the sui generis right was quite erratic. Admittedly, such state of affairs was not dissimilar in other Member States owing to the sheer novelty of the sui …

Restoring The Natural Law: Copyright As Labor And Possession, Alfred C. Yen

Alfred C. Yen

In this Article, Professor Yen explores the problems associated with viewing copyright solely as a tool for achieving economic efficiency and advocates for the restoration of natural law to copyright jurisprudence. The Article demonstrates that economics has not been solely responsible for copyright’s development and basic structure, but has rather developed along lines suggested by neutral law, despite modern copyright jurisprudence. The Article considers the consequences of extinguishing copyright’s natural law facets in favor of the blind pursuit of efficiency and concludes by exploring the implications of restoring natural law thinking to copyright jurisprudence.

Paying It Forward: The Case For A Specific Statutory Limitation On Exclusive Rights For User-Generated Content Under Copyright Law, Warren Bartholomew Chik Asst. Prof. Of Law

Warren Bartholomew CHIK

This article examines the User-Generated Content (UGC) phenomena and the significance of re-inventions in the context of an increasingly user-centric Internet environment and an information sharing society. It will explain the need to provide a statutory limitation in the form of an exception or exemption for socially beneficial UGC on the exclusive rights under copyright law. This will also have the effect of protecting the Internet intermediary that hosts and shares UGC. Nascent but abortive attempts have been made by Canada to introduce just such a provision into her copyright legislation, while some principles and rules have also emerged from …

The Legality Of Free And Open Source Software Licenses: The Case Of Jacobsen V. Katzer, Brian Fitzgerald, Rami M. Olwan

Rami M Olwan

No abstract provided.

The Yang Obeys, But The Yin Ignores: Copyright Law And Speech Suppression In The People's Republic Of China, Stephen J. Mcintyre

Stephen J McIntyre

Copyright law can serve to either promote or restrict free speech: while copyright preserves economic incentives to create and publish new expression, it also fences off expression from public use. For this reason, the effect of copyright law on speech in a given country depends on the particular manner in which it is understood, legislated, and enforced. This Article argues that copyright law in the People’s Republic of China serves as a tool for speech suppression and censorship. Whereas China has engaged in official censorship for thousands of years, there has historically been little appreciation for proprietary rights in art …

Separation Of Ownership And The Authorization To Use Personal Computers: Unintended Effects Of Eu And U.S. Law On It Security, Lukas Feiler

Lukas Feiler

It used to be that owners of personal computers typically had full and exclusive authorization to use their computers. This was primarily due to the open architecture introduced with the IBM Personal Computer in the 1980s and proliferated in the 1990s. Recent developments bear evidence of an increasing disconnection between the concept of ownership and that of authorization to use a personal computer (including mobile devices such as notebooks, sub-notebooks, cell phones, smartphones, and PDAs): interference with the closed architecture employed by Apple’s iPhone is claimed to constitute a violation under 17 U.S.C. § 1201; the EULA for Windows 7 …

How Should China Respond To Online Piracy Of Sports Telecasts, Seagull Haiyan Song Dr.

Seagull Haiyan Song

No abstract provided.

Essence Of Copyright By Raheel R Daureeawo Llm, Raheel R. Daureeawo

Raheel R Daureeawo

Copyright is and has always been about policy. And what I intend to discuss in this paper is a list of topics which have always been center of debate in copyright courts. Although each topic is a book in itself, but my attempt here is to consolidate this list. The goal of the law of copyright has always been to promote scientific, literary and artistic creativity and protect as well as limit these rights in order to prevent monopolies. In order to understand the present and future of copyright it is imperative to know its past. There is a debate …

Copyright Law In The United Arab Emirates In The Digital Age, Brian Fitzgerald, Rami M. Olwan

Rami M Olwan

This article gives an overview of copyright law in the United Arab Emirates (UAE) and critically evaluates its operation in the digital era, providing suggestions for reform.

Copyright And Cultural Heritage - Transcripts From Bileta Conference 30 March 2009, Estelle Derclaye

Estelle Derclaye

This file comprises the comments made by the panelists at the conference I organised on 30 March 2009 on copyright and cultural heritage. They can be read together and are referred to in E. Derclaye (ed), Copyright and Cultural Heritage: Preservation and Access to Works in a Digital World, E. Elgar Publishing, Cheltemham/Northampton, 2010.

The “Spiritual Temperature” Of Contemporary Popular Music: An Alternative To The Legal Regulation Of Death-Metal And Gangsta-Rap Lyrics, Tracy Reilly

Tracy Reilly

Of Maps, Crown Copyright, Research And The Environment, Estelle Derclaye

Estelle Derclaye

No abstract provided.

Flashing Badge Co Ltd V Groves: A Step Forward In The Clarification Of The Copyright/Design Interface, Estelle Derclaye

Estelle Derclaye

No abstract provided.

Intellectual Property Rights And Global Warming, Estelle Derclaye

Estelle Derclaye

No abstract provided.

Does The Directive On The Re-Use Of Public Sector Information Affect The State’S Database Sui Generis Right?, Estelle Derclaye

Estelle Derclaye

No abstract provided.

Authors And Readers: Conceptualizing Authorship In Copyright Law, Alina Ng

Alina Ng

Copyright law recognizes authors as the first owners of copyright. However, there is paucity in literature in copyright analysis of the author and the rights which should be granted by virtue of the very act of creativity in the production of literary and artistic works. This indicates insufficient attention paid to a concept that is so central to a law that primarily aims to encourage authorship for society’s benefit. The idea of the author and authorship as a creative process is central to copyright analysis. Deeper analysis of the author and creative authorship will provide insights into how the law …

Pornography, Coercion, And Copyright Law 2.0, Ann Bartow

Ann Bartow

The lack of regulation of the production of pornography in the United States leaves pornography performers exposed to substantial risks. Producers of pornography typically respond to attempts to regulate pornography as infringements upon free speech. At the same time, large corporations involved in the production and sale of pornography rely on copyright law's complex regulatory framework to protect their pornographic content from copying and unauthorized distribution. Web 2.0 also facilitates the production and distribution of pornography by individuals. These user-generators produce their own pornography, often looking to monetize their productions themselves via advertising revenues and subscription models. Much like their …

Creative Reading, Jessica Litman

Jessica Litman

In this short essay, a comment on Rebecca Tushnet’s Payment in Credit: Copyright Law and Subcultural Creativity, 70 Law & Contemporary Problems 133 (2007), I argue that copyright scholars have undervalued the copyright interests of readers, listeners and viewers. By ignoring the central importance of audience interests in the copyright scheme, we have all but conceded that the essential policy question in determining whether a use of copyrighted material should be lawful is the way the use looks from the viewpoint of the copyright owner. This approach fails to appreciate that reading, listening, viewing and playing commonly involve significant creativity, …