Law Commons^™

Ftas' Contribution Towards A More Flexible Copyright Space: Possibilities And Limits, Maria Vasquez Callo-Muller

American University International Law Review

Free Trade Agreements (FTAs) have often been considered instruments for heightened intellectual property rights protection, thereby in detriment of a more flexible copyright space. However, since the adoption of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, some FTAs have been incorporating a clause on the “Balance in Copyright and Related Rights Systems.” Among these, the Regional Comprehensive Economic Partnership Agreement and, more recently, the 2021 Australia-U.K. FTA contain such a clause. In addition, more discrete FTAs, such as the AustraliaPeru FTA, also incorporate similar provisions. This article considers what incorporating such clauses in FTAs means for the interpretation of …

Ransomware Groups On Notice: U.S. Cyber Operation Against Revil Is Permissible Under International Law, Justin Singh

American University International Law Review

The continued increase in the use of ransomware by cyber criminals has had a costly impact on businesses and organizations around the world. Ransomware groups continue to initiate attacks on businesses and organizations, and states have become increasingly concerned over the potential impact it may have on their critical infrastructure and economies. The United States’ recent acknowledgement of cyber operations against ransomware groups highlights the seriousness of the issue and exposes areas of international law that are complicated when applied to cyber operations against these groups. This Comment explores the relevant international law as it applies to the United States …

Securing Patent Law, Charles Duan

Articles in Law Reviews & Other Academic Journals

A vigorous conversation about intellectual property rights and national security has largely focused on the defense role of those rights, as tools for responding to acts of foreign infringement. But intellectual property, and patents in particular, also play an arguably more important offense role. Foreign competitor nations can obtain and assert U.S. patents against U.S. firms and creators. Use of patents as an offense strategy can be strategically coordinated to stymie domestic innovation and technological progress. This Essay considers current and possible future practices of patent exploitation in this offense setting, with a particular focus on China given the nature …

Lost In Transit: How Enforcement Of Foreign Copyright Judgements Undermines The Right To Research, Naama Daniel

American University International Law Review

The ease of travel in the globalized, modern world is a doubleedged sword for the right to research: while research opportunities are bolstered due to information and data traveling extremely easily in the digital world, the right to research may be undermined by the easy travel of foreign copyright judgments between countries. This article analyzes thoroughly, for the first time, the threats posed to the right to research by private international law instruments on recognition and enforcement of foreign copyright judgments. This article uses a theoretical and doctrinal perspective to analyze the matter, demonstrating that the right to research, aimed …

Of Lock-Breaking And Stock Taking: Ip, Climate Change And The Right To Repair In Canada, Graham Reynolds

All Faculty Publications

This paper argues that Canadian governments have both legal and moral obligations to act to combat climate change. In seeking to fulfill these obligations, Canadian governments should pay particular attention to Canada’s intellectual property (IP) regime. This paper argues that given the centrality of IP to Canada’s economy, a comprehensive review is required in order to determine whether and the extent to which elements of Canada’s IP regime contribute to climate change or impede climate action. To illustrate the need for such a review, this paper will highlight one example of how Canada’s IP regime, as currently structured, impedes the …

Reforming Copyright Or Toward Another Science? A More Human Rights-Oriented Approach Under The Rebspa In Constructing A "Right To Research" For Scholarly Publishing, Klaus Beiter

Joint PIJIP/TLS Research Paper Series

This article identifies copyright impediments existing in the sphere of science, to then make (tentative) suggestions as to how these may be overcome. It focuses on scholarly publishing only, and here primarily on digital content, specifically asking whether expensive commercial scholarly publishers continue to “add value” to research in the digital era. The deficits of copyright law and potential solutions thereto are assessed in the light of the right of everyone “to enjoy the benefits of scientific progress and its applications” (REBSPA) as laid down in Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) of …

Securing Secrets: The Need For A Treaty Addressing State-Sponsored Economic Espionage, Jaylin Johnson

West Virginia Law Review

No abstract provided.

Platform Liability Under Article 17 Of The Copyright In The Digital Single Market Directive, Automated Filtering And Fundamental Rights: An Impossible Match, Christophe Geiger, Bernd Justin Jütte

Joint PIJIP/TLS Research Paper Series

The Directive on Copyright in the Digital Single Market (CDSM Directive) introduced a change of paradigm with regard to the liability of some platforms in the European Union. Under the safe harbour rules of the Directive on electronic commerce (E-Commerce Directive), intermediaries in the EU were shielded from liability for acts of their users committed through their services, provided they had no knowledge of it. Although platform operators could be required to help enforce copyright infringements online by taking down infringing content, the E-commerce Directive also drew a very clear line that intermediaries could not be obliged to monitor all …

Multilateralism, Pushback, And Prospects For Global Engagement?, Michael Donald Kirby The Honourable

Indiana Journal of Global Legal Studies

In this article, the author draws on long engagement with multilateralism, both in domestic jurisdiction and international institutions. He describes the growth of post-War United Nations activities and the increasing impact of international law, including on universal human rights. He records international initiatives on global problems like HI V/AIDS and in individual countries, such as Cambodia and North Korea. He then describes recent examples of '"pushback" against multilateralism, especially on the part of the United States, the United Kingdom, some European countries, and Australia. He concludes with illustrations and reasons why the global community should remain optimistic about multilateralism, despite …

Evaluating Flexibility In International Patent Law, Sarah R. Wasserman Rajec

Sarah R. Wasserman Rajec

Global patent law has raced toward harmonization over the past decades. Countries with vastly different industries, values, and levels of development now offer robust patent rights with similar contours through membership in the World Trade Organization and consequent adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”). However, patent law is still far from harmonized among countries or static within countries. Jurisdictions tailor their patent laws to accommodate differences between industries, unforeseen inefficiencies, and diverse views of the costs and benefits associated with offering patent rights to stimulate innovation. Prior scholarly work consists of either doctrinal analyses …

Free Trade In Patented Goods: International Exhaustion For Patents, Sarah R. Wasserman Rajec

Sarah R. Wasserman Rajec

Modern international trade law seeks to increase global welfare by lowering barriers to trade and encouraging international competition. This “free trade” approach, while originally applied to reduce tariffs on trade, has been extended to challenge non-tariff barriers, with modern trade agreements targeting telecommunication regulations, industrial and product safety standards, and intellectual property rules. Patent law, however, remains inconsistent with free-trade principles by allowing patent holders to subdivide the world market along national borders and to forbid trade in patented goods from one nation to another. This Article demonstrates that the doctrines thwarting free trade in patented goods are protectionist remnants …

Patents Absent Adversaries, Sarah R. Wasserman Rajec

Sarah R. Wasserman Rajec

No abstract provided.

Who Owns The Law? How To Restore Public Ownership Of Legal Publication, Leslie A. Street, David R. Hansen

Leslie Street

No abstract provided.

Who Owns The Law? How To Restore Public Ownership Of Legal Publication, Leslie A. Street, David R. Hansen

Library Staff Publications

No abstract provided.

Globalizing User Rights-Talk: On Copyright Limits And Rhetorical Risks, Carys Craig

Carys Craig

Around the world, the focus of copyright policy reform debates is shifting from the protection of copyright owners’ rights towards defining their appropriate limits. There is, however, a great deal of confusion about the legal ontology of copyright “limits,” “exceptions,” “exemptions,” “defenses,” and “user rights.” While the choice of terminology may seem to be a matter of mere semantics, how we describe and conceptualize lawful uses within our copyright system has a direct bearing on how we delimit and define the scope of the owner’s control. Taking seriously the role of rhetoric in shaping law and policy, this Paper critically …

Globalizing User Rights-Talk: On Copyright Limits And Rhetorical Risks, Carys Craig

Articles & Book Chapters

Around the world, the focus of copyright policy reform debates is shifting from the protection of copyright owners’ rights towards defining their appropriate limits. There is, however, a great deal of confusion about the legal ontology of copyright “limits,” “exceptions,” “exemptions,” “defenses,” and “user rights.” While the choice of terminology may seem to be a matter of mere semantics, how we describe and conceptualize lawful uses within our copyright system has a direct bearing on how we delimit and define the scope of the owner’s control. Taking seriously the role of rhetoric in shaping law and policy, this Paper critically …

U.S. Patent Extraterritoriality Within The International Context, Amy L. Landers

Amy L. Landers

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 …

Patents Absent Adversaries, Sarah R. Wasserman Rajec

Faculty Publications

No abstract provided.

Indigenous Peoples, Intangible Cultural Heritage And Participation In The United Nations, Ana Filipa Vrdoljak

Ana Filipa Vrdoljak

This chapter concentrates on the participation of indigenous peoples in multilateral initiatives to protect cultural heritage, with specific reference to intangible heritage. While an international instrument for the protection of intangible heritage was adopted over a decade ago, the importance of intangible heritage for indigenous peoples is evident in their work in various UN fora. I examine indigenous peoples’ interventions before UNESCO and bodies established to implement the Convention on the Safeguarding of Intangible Cultural Heritage; within WIPO in respect of ongoing moves to adopt specialist instruments on traditional knowledge and cultural expressions; and finally, within UNEP and the implementation …

Traditional Knowledge Rights And Wrongs, Sean Pager

Sean Pager

SourceURL:file://localhost/Users/sean/Documents/Folklore%20TK/Unpacking%20ABSTRACT.doc

Traditional Knowledge Rights and Wrongs

Sean A. Pager, Michigan State University

ABSTRACT

Should the intangible heritage of indigenous people be subject to intellectual property rights? After years of effort, international delegates are poised to complete a pair of ambitious treaties that would accomplish this goal. This Article provides the first detailed analysis and critique of the draft treaties, which provide for exclusive rights in traditional knowledge and cultural expression, respectively. Proponents of such protection often invoke both cultural integrity and economic justice rationales. Yet, these rationales dictate conflicting imperatives. To resolve these conflicts, the Article argues for greater differentiation …

On Climate Change And Cyber Attacks: Leveraging Polycentric Governance To Mitigate Global Collective Action Problems, Scott J. Shackelford

Scott Shackelford

Although the atmosphere and cyberspace are distinct arenas, they share similar problems of overuse, difficulties of enforcement, and the associated challenges of collective inaction and free riders. Moreover, “[m]illions of actors affect the global atmosphere[,]” just as they do the Internet. With weather patterns changing, global sea levels rising, and temperatures set to exceed 1.5 degrees Celsius by 2100, climate change is a problem affecting the entire world, but one in which the benefits are dispersed and the harms are often concentrated. Similarly, much of the cost of cyber attacks is focused in a relatively small number of nations even …

Copyright In Pantomime

Brian L. Frye

Why does the Copyright Act specifically provide for the protection of “pantomimes”? This article shows that the Copyright Act of 1976 amended the subject matter of copyright to include pantomimes simply in order to conform it to the Berne Convention for the Protection of Literary and Artistic Works. It further shows that the Berlin Act of 1909 amended the Berne Convention to provide for copyright protection of “les pantomimes” and “entertainments in dumb show” in order to ensure copyright protection of silent motion pictures. Unfortunately, the original purpose of providing copyright protection to “pantomimes” was forgotten. This Article argues that …

International Trade V. Intellectual Property Lawyers: Globalization And The Brazilian Legal Profession, Vitor M. Dias

Vitor M. Dias

No abstract provided.

The Protection Of Performers Under U.S. Law In Comparative Perspective, Daniel Gervais

Daniel J Gervais

The Garcia v Google case raised fundamental questions about US law as it applies to performed works. This Essay uses a comparative lens to shed some hopefully useful light on the debate. The Essay proceeds essentially in two parts. First, the Essay explores and critiques the international protection of performers’ rights using both history and policy as focal points. The following part describes the protection of performers and other owners of “related rights” in US law and explains the differences that adopting a related rights regime would bring about in the United States.

Traditional Knowledge Rights And Wrongs, Sean Pager

Sean Pager

Should the intangible heritage of indigenous cultures be subject to intellectual property rights? After years of effort, international delegates are poised to complete a pair of ambitious treaties that would accomplish this goal. This Article provides the first detailed analysis and critique of the draft treaties, which provide for exclusive rights in traditional knowledge and cultural expression, respectively. Proponents of such protection often invoke both cultural integrity and economic justice rationales. Yet, these rationales dictate conflicting imperatives. To resolve these conflicts, the Article argues for greater differentiation between the two draft treaties based on subject matter. Just as copyright and …

Promoting “Academic Entrepreurship” In Europe And The United States: Creating An Intellectual Property Regime To Facilitate The Efficient Transfer Of Knowledge From The Lab To The Patient, Constance Bagley, Christina Tvarno

Constance E. Bagley

In 2014, the European Commission announced the launch of a study of knowledge transfer by public research organizations and other institutes of higher learning “to determine which additional measures might be needed to ensure an optimal flow of knowledge between the public research organisations and business thereby contributing to the development of the knowledge based economy.” As the European Commission has recognized, the EU needs to take action to “unlock the potential of IPRs [intellectual property rights] that lie dormant in universities, research institutes and companies.” This article builds on our earlier work on structuring efficient pharmaceutical public-private partnerships (PPPPs) …

The Right To Read, Lea Shaver

Lea Shaver

Reading – for education and for pleasure – may be framed as a personal indulgence, a moral virtue, or even a civic duty. What are the implications of framing reading as a human right?

Although novel, the rights-based frame finds strong support in international human rights law. The right to read need not be defended as a “new” human right. Rather, it can be located at the intersection of more familiar guarantees. Well-established rights to education, science, culture, and freedom of expression, among others, provide the necessary normative support for recognizing a universal right to read as already implicit in …

Sustainable Cybersecurity: Applying Lessons From The Green Movement To Managing Cyber Attacks, Scott J. Shackelford, Tim Fort

Scott Shackelford

According to Frank Montoya, the U.S. National Counterintelligence Chief, “We’re an information-based society now. Information is everything. That makes . . . company executives, the front line – not the support mechanism, the front line – in [determining] what comes.”[1] Chief Montoya’s remarks underscore the central role played by the private sector in ongoing efforts aimed at enhancing cybersecurity, much like the increasingly vital role firms are playing in fostering sustainability. For example, according to Accenture surveys, the number of managers who consider sustainability to be critical to the future success of their organizations jumped from fifty to more …

Toward A State-Centric Cyber Peace? Analyzing The Role Of National Cybersecurity Strategies In Enhancing Global Cybersecurity, Scott J. Shackelford, Andraz Kastelic

Scott Shackelford

There is a growing consensus that nations bear increasing responsibility for enhancing cybersecurity. A related recent trend has been the adoption of long-term strategic plans to help deter, protect, and defend against cyber threats. These national cybersecurity strategies outline a nation’s core values and goals in the realm of cybersecurity law and policy, from mitigating cybercrime and espionage to preparing for cyber warfare. This Article assesses the notion that nations bear the primary responsibility for managing cyber attacks and mitigating cybercrime by analyzing thirty-four national cybersecurity strategies as a vehicle to discover governance trends that could give rise to customary …