Law Commons^™

A Modern Reconceptualization Of Copyrights As Public Rights, Matthew L. Pangle

Vanderbilt Journal of Entertainment & Technology Law

Copyright law is at a crossroads. In the wake of Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, the patent, copyright, and intellectual property regimes as a whole, are primed for a modern reconceptualization. At the heart of this reconceptualization is the distinction between public rights, those vindicated by public offices for the public good, and private rights, those vindicated by private citizens for their exclusive government-granted monopolies. Thanks to Oil States, patent rights now exist in two separate bundles-—a public bundle including the patent grant itself and a private bundle consisting of a patent owner’s exclusivity rights. …

Compulsory Licensing Of Patents In Times Of Public Health Emergency, Kelsey Truglio

Touro Law Review

In March 2020, the United States shut down to avoid the continued spread of the COVID-19 virus as it spread globally. In December 2020, the first COVID-19 vaccines were granted emergency usage authorization in the United States. Wealthy nations were able to quickly purchase and hoard vaccines for public distribution, leaving many third-world countries and developing nations struggling to continue to survive the pandemic without vaccination.

Compulsory licensing should be allowed on otherwise patented or patentable new technology in times of global health emergency, regardless of which entity creates the technology. This will enable governments of countries spanning all wealth …

Copyright, Creativity, Big Media And Cultural Value: Incorporating The Author, Jane C. Ginsburg

Faculty Scholarship

Copyright, Creativity, Big Media and Cultural Value is a wide-ranging work of immense erudition and archival research, combining several historical studies of the ‘incorporation’ of the author in different sectors of the ‘creative industries’. The book’s subtitle, ‘Incorporating the Author’, astutely encompasses multiple meanings, whose implications the book works through. These include the author as an initiating participant in a larger economic structure (Chapter 3 (print publishing)). But also, the author as a bit player enveloped by a larger economic structure (Chapter 5 (film industry)). And the author (or performer) as an autonomous object of economic value (Chapters …

The Promise Of Patent-Backed Finance For Smes And Universities, And Shifting Patent Eligible Subject Matter, Mattias Karlsson Dinnetz, Michael S. Mireles

Lewis & Clark Law Review

This Article reviews and addresses some of the problems concerning adequate capital to develop patented inventions and products, and inhibiting the widespread use of patents to raise financing. The Article divides the IP finance market into three separate, but interrelated markets and analyzes problems, including U.S. patent-eligible subject matter doctrine, within those markets impeding patent-backed financing. The Article provides numerous proposals, some of which are in the literature, and calls for additional research for addressing the issues.

Taxing Creativity, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

The recent sell offs of song catalogs by Bob Dylan, Stevie Nicks, Neil Young, and Mick Fleetwood for extraordinarily large sums of money raise questions about the law on creativity. While patent and copyright laws encourage a wide array of creative endeavors, tax laws governing monetization of creative works do not. The Songwriters Capital Gains Equity Act, in particular, solidifies creativity exceptionalism, exacerbates tax inequities among creators, and perpetuates racial disparities in the tax Code. This Article asserts that the law must encourage creativity from all creators. It is time to eliminate tax exceptionalism for musical compositions or expand its …

The Truth About Design Patents, Sarah Burstein, Saurabh Vishnubhakat

American University Law Review

Design patents are hot. Scholars and policymakers are increasingly focusing on this once-niche area of law. However, many of the empirical studies in this area— including old ones that still get cited—were methodologically questionable from the start, have become outdated, or both. In this Article, we make two sets of contributions to this important and underdeveloped literature. First, we review the empirical studies of design patents thus far, including those that pre- and post-date the creation of the U.S. Court of Appeals for the Federal Circuit, and we update the findings of those studies. Second, we consider a set of …

Spider-Man: Work From Home And Retain No Copyright Under The Instance And Expense Test, Shahnoor Kamal Khan

American University Law Review

From Spider-Man to Ms. Marvel, superheroes are beloved by many, but owned by the few. Marvel Entertainment retains the copyright to iconic characters such as these, despite the fact that Marvel’s employees did not create them. These characters were created by freelance artists Jack Kirby, Steve Ditko, and Lawrence Lieber, among others. Yet, the Second Circuit ruled in Marvel Characters v. Kirby that these freelance artists have no claim of copyright over their own masterful works. The Second Circuit relied on the instance and expense test for copyright, as opposed to the Supreme Court’s leading copyright decision, Community for Creative …

Ms. Attribution: How Authorship Credit Contributes To The Gender Gap, Jordana Goodman

Faculty Scholarship

Misattribution plagues the practice of law in the United States. Seasoned practitioners and legislators alike will often claim full credit for joint work and, in some cases, for the entirety of a junior associate’s writing. The powerful over-credit themselves on legislation, opinions, and other legal works to the detriment of junior staff and associates. The ingrained and expected practice of leveraging junior attorneys as ghost-writers is, to many, unethical. But it presents a distinct concern that others have yet to interrogate: misattribution disparately impacts underrepresented members of the legal profession.

This Article fills that space by offering a quantitative analysis …

Investigating Design, Mark Mckenna, Jessica Silbey

Faculty Scholarship

Design is ascendant. Steve Jobs’s legendary obsession with design was widely regarded as Apple’s comparative advantage, and that lesson has not been lost on its competitors. Design thinking is a growth industry, in business and at universities, and design professionals continue to take on increasingly significant roles within firms. The increasing economic significance of design has been reflected in an explosion of design patent applications and increasing amount of design litigation.
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/="/">Despite design’s growing economic and legal importance, relatively little is known by legal scholars and policymakers about designers or the design process. This paper addresses that gap …

Floors And Ceilings In International Copyright Treaties: Berne/Trips/Wct Minima And Maxima, Jane C. Ginsburg

Faculty Scholarship

This paper addresses “floors” – minimum substantive international protections, and “ceilings” – maximum substantive international protections, set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the “maxima” have generally received less attention. This Comment first describes the general structure of the Berne Convention, TRIPS and WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive. Within the universe of multilateral copyright obligations, the Berne maxima (prohibition of protection for facts and news of the day), buttressed by …

France's Organisme De Défense Et De Gestion: A Model For Farmer Collective Action Through Standard Development And Brand Management, Christopher J. Bardenhagen, Philip H. Howard, Marie-Odile Noziéres-Petit

Journal of Food Law & Policy

Quality-based food production, often with a regional dimension, can provide farmers with new, value added markets. It can also provide consumers with access to place based high-quality products, and may benefit local economies through increased commerce. French Organismes de Défense et de Gestion (ODGs) illustrate a mode of quality-based agri-food business organization. ODGs focus on the development of production standards, as well as management of the intellectual property related to those standards. This mode, which is commonly used in Europe, has not often been used in the United States, despite its potential for regional food system development. The ODG mode …

Vaccine Clinical Trials And Data Infrastructure, Ana Santos Rutschman

Utah Law Review

We find ourselves at a momentous turn in the history of vaccines. The COVID-19 pandemic triggered a quasi-global vaccine race that not only compressed vaccine research and development (R&D) timelines, but also paved the way for the administration of a new type of vaccine technology – mRNA vaccines, which work in substantially different ways from the vaccines in use before the pandemic.

While the process of bringing emerging COVID-19 vaccines to market has taken place in an unusually short timeframe, it was largely predicated on the same scientific and regulatory processes that govern the development, approval and deployment of new …

A Typology Of Disclosure, Sharon K. Sandeen

Akron Law Review

Information and data have always been valuable to businesses, but in the Information Age, as businesses have figured out more ways to commoditize the information and data they possess, there has been a corresponding increase in expressed concerns about the unauthorized “disclosure” of information. Often, these concerns are expressed in absolute terms, as if any unauthorized disclosure of information constitutes an act of unfair competition or theft. The problem is that the common understanding of disclosure, particularly among information owners that seek to restrict access to the information they possess, belies the legal meaning of the term as used in …

Striking The Right Balance: Following The Doj's Lead For Innovation In Standardized Technology, Kristen Osenga

Akron Law Review

Today’s technology standards are the result of an extraordinary amount of innovation, collaboration and competition. These concepts are interrelated, and each is enhanced or enabled by intellectual property. Where these three concepts come together in standards development, it is unsurprising that antitrust concerns are also present. Specifically, the interests of contributors, participants, and implementers must be fairly balanced to ensure that the appropriate types and levels of innovation, collaboration, and competition can occur—and that the public will benefit. It is important that antitrust enforcement involving standards development organizations and owners of standards essential patents recognize the careful balance of these …

After The Trolls: Patent Litigation As Ex Post Market-Making, Robert Merges

Akron Law Review

Patent policy has been dominated lately by efforts to reduce rent-seeking patent troll litigation. As recent reforms begin to take effect, it is timely to consider the more constructive aspects of patent litigation. This Article contends that the lag between product development and patent litigation, which pushes the problem of patent valuation into the ex post (after product development) period, serves just such a positive function. Re-search, development, and product roll-out can all take place first. Then, at a later stage, patent litigation sorts out the relative merits and contributions of the various inventors and competitors who contributed to the …

Emotions And Intellectual Property Law, Margaret Chon

Akron Law Review

Emotions constitute an integral part of the diverse approaches that we bring to bear upon our most pressing law and policy issues. This article explores the role of emotions in intellectual property, information, and technology law (IP). Like other areas of law, IP commits to, prioritizes, and even honors, reason, logic, and facts—which can result in the sidelining of the affective components of law. Yet our affective responses to legal and other phenomena influence both cognition and reason. Part I of the article provides a general overview of the field of law and emotions, pointing out how this approach to …

Copyrighting Tiktok Dances: Choreography In The Internet Age, Ali Johnson

Washington Law Review

TikTok is a video-sharing social media application that launched in 2018 and has grown wildly since its inception. Many users are drawn to the platform by “dance challenges”—short dance routines of varying complexity set to popular songs that are recreated by other users, eventually going “viral” (i.e., recreated on a massive scale by other users) on the app. Going viral can provide young dancers and choreographers an opportunity to break into the highly competitive entertainment industry. However, there is a problem: due to TikTok’s interface and community practices, the original creators of a dance (who, significantly, are often young women …

Games Without Frontiers: The Increasing Importance Of Intellectual Property Rights In The People’S Republic Of China, James M. Cooper

Faculty Scholarship

Intellectual property (“IP”) protection in the People's Republic of China has been murky and amorphous. The country is currently enjoying a historic era with significant infrastructure and investment projects occurring as the Chinese consumer society substantially expands. These simultaneous trends require that China commit to the securitization and protection of IP rights to sustain its rapid economic growth.

Trademark, Labor Law, And Antitrust, Oh My!, Jessica Silbey

Faculty Scholarship

I am allergic to antitrust law, but after reading Hiba Hafiz’s recent article, I understand that my aversion is problematic. This paper combines an analysis of trademark law, labor law, and antitrust law to explain how employers exploit trademark law protections and defenses to control labor markets and underpay and under-protect workers. For most IP lawyers and professors, this article will open our minds to some collateral effects of trademark law’s consumer protection rationale on other areas of law with important consequences for economic and social policies.

Ruth Bader Ginsburg's Intellectual Property Jurisprudence, Ryan Vacca, Ann Bartow

Faculty Publications

On September 18, 2020, the world lost an irreplaceable leader. Justice Ruth Bader Ginsburg, after many years of battling cancer, had passed away. Although she will primarily be remembered for her work on gender equality—as both advocate and jurist—Justice Ginsburg signiicantly impacted other areas of the law. One such area is intellectual property. During her time on the U.S. Supreme Court, she authored 20 opinions in these areas—11 copyright, seven patent, and two trademark—and joined the opinions of her colleagues in many others.

Protecting Patent Owners From Infringement By The States: Will The Intellectual Property Rights Restoration Act Of 1999 Finally Satisfy The Court?, Brandon White

Akron Law Review

The Intellectual Property Rights Restoration Act of 1999 (IPRRA), a Senate Bill currently making its way through Congress, seeks to provide a remedy for patent infringement by the states that Supreme Court will find constitutional. In this Comment, Part II will explore the history of state sovereign immunity under both the Eleventh Amendment and the common law. Part III examines Senate Bill 1835, also known as the Intellectual Property Rights Restoration Act of 1999. Part III looks at not only the substantive provisions of the IPRRA, but also at the legal arguments and policy concerns that support the Act. Part …

Intellectual Property Through A Non-Western Lens: Patents In Islamic Law, Tabrez Y. Ebrahim

Georgia State University Law Review

The intersection of secular, Western intellectual property law and Islamic law is undertheorized in legal scholarship. Yet the nascent and developing non-Western law of one form of intellectual property—patents—in Islamic legal systems is profoundly important for transformational innovation and economic development initiatives of Muslim-majority countries that comprise nearly one-fifth of the world’s population.

Recent scholarship highlights the tensions of intellectual property in Islamic law because religious considerations in an Islamic society do not fully align with Western notions of patents. As Islamic legal systems have begun to embrace patents in recent decades, theories of patents have presented conceptual and theological …

Penal Protection Of Intellectual Technology In Jordanian Legislation “Critical Analytical Study”, ممدوح حسن العدوان, Abdulellah M. Al-Nawaysh

Jerash for Research and Studies Journal مجلة جرش للبحوث والدراسات

There is no doubt that the information revolution that accompanied the emergence of computer and information technology prompted the penal legislator to enact legislation to confront the infringement of property rights to the information and to the outputs of this modern technology, and to close the door against those who try to undermine those rights that were created by this technology.

Accordingly, this research was presented to highlight the Jordanian penal legislation related to intellectual property, which provided this protection. This research addressed three topics. The first section defined the meaning of information technology as well as intellectual property legislation. …

Originality's Other Path, Joseph A. Fishman

Vanderbilt Law School Faculty Publications

Drawing on original archival research, this Article challenges the standard account of what originality doctrine is and what courts can do with it. It identifies Nelson's forgotten copyright legacy: a still-growing line of cases that treats music differently, sometimes even more analogously to patentable inventions than to other authorial works. These decisions seem to function as a hidden enclave within originality's larger domain, playing by rules that others couldn't get away with. They form originality's other path, much less trod than the familiar one but with a doctrinal story of its own to tell. Originality and nonobviousness's parallel beginnings reveal …

Governing The Unknown: How The Development Of Intellectual Property Law In Space Will Shape The Next Great Era Of Exploration, Exploitation, And Invention, Lauren Peterson

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Code Ownership : Plagiarism And Use, Alexis Nicole Amore

Theses, Dissertations and Culminating Projects

Technology is moving at unmeasurable rates to that of law. Ownership rights and legality become harder to grasp distant theories. With community code-sharing and limiting language structures, when does code become plagiarized or entity-owned? The disciplines of Cyberlaw and computer science are used to provide a better understanding.

The Cyberlaw discipline explores how jurisdiction views cyberspace, source code, and source code’s placement within legislation. Due to cyberspace’s ever-evolving nature, litigation struggles to encompass the possibilities within it. Computer science delves into theory-based excursions that define the law’s shape in the cyber realm. It bolsters the possibility of implementing progressive legislation …

Intellectual Property, Secrets, And Declassified Information. Mastering United States Government Information: Sources And Services, Christopher C. Brown, Libraries Unlimited, 2020., Suzanne Reinman

Journal of the Patent and Trademark Resource Center Association

No abstract provided.

Note: Patentability Of 3d Printed Biomaterials, Nicole Barba

Notre Dame Journal on Emerging Technologies

The Congressional criteria for patentability, detailed in 35 U.S.C §§101-03, states that an invention must be novel, useful, and nonobvious. In addition to these requirements, the Judiciary requires that the invention not be classified as a law of nature, natural phenomenon, or abstract idea. The purpose of each of these criterion is to ensure that patents are granted only to inventions that “promote the Progress of . . . useful Arts.” As new technologies emerge, it is unclear whether these judicially created criteria still serve that purpose or whether the criteria are overly expansive such that truly useful inventions are …

Ignoring Information Quality, Janet Freilich

Faculty Scholarship

Entry into the patent system is guarded by an examination process to screen out applications that impose undue costs on the public without commensurate benefit. To do this, patent examiners rely heavily on various pieces of information-both provided by the patent applicant and independently discovered by the examiner-to assess whether an application should be granted. This Article shows that there are few mechanisms at the U.S. Patent and Trademark Office for questioning the veracity of this information, even though it may be incorrect. Rather, patent examination often assumes that existence of information equals accuracy of information. Consequently, examiners may rely …

How To Build More Equitable Vaccine Distribution Technology, Laura M. Moy, Yael Cannon

Georgetown Law Faculty Publications and Other Works

The COVID-19 pandemic and the distribution of vaccines that promise to bring it to an end have spotlighted inequities in our nation’s healthcare system. But the vaccine distribution problem illustrates a peculiar fact of our digital era: just how hard it is to ensure equitable delivery of services via the internet. This is especially the case when distributing a scarce critical resource as quickly as possible on a massive scale.

In this Brookings Institution article, Professors Laura Moy and Yael Cannon argue that digital infrastructure is a critical determinant of health, and call for the restructuring of online vaccine appointment …