Intellectual Property Law Commons^™

A Half-Century Of Scholarship On The Chinese Intellectual Property System, Peter K. Yu

Faculty Scholarship

The first modern Chinese intellectual property law was established in August 1982, offering protection to trademarks. Since then, China adopted the Patent Law in 1984, the Copyright Law in 1990 and the Anti-Unfair Competition Law in 1993. In December 2001, China became a member of the World Trade Organization, assuming obligations under the TRIPS Agreement. In the past decade, the country has also actively participated in the negotiation of bilateral, regional and plurilateral trade agreements, including most notably the Regional Comprehensive Economic Partnership.

Today, the Chinese intellectual property system has garnered considerable global policy and scholarly attention. To help develop …

Customizing Fair Use Transplants, Peter K. Yu

Faculty Scholarship

In the past decade, policymakers and commentators across the world have called for the introduction of copyright reform based on the fair use model in the United States. Thus far, Israel, Liberia, Malaysia, the Philippines, Singapore, South Korea, Sri Lanka and Taiwan have adopted the fair use regime or its close variants. Other jurisdictions such as Australia, Hong Kong and Ireland have also advanced proposals to facilitate such adoption.

Written for a special issue on "Intellectual Property Law in the New Technological Age: Rising to the Challenge of Change?", this article examines the increasing efforts to transplant fair use into …

When The Chinese Intellectual Property System Hits 35, Peter K. Yu

Faculty Scholarship

This article explores what it means for the Chinese intellectual property system to hit 35. It begins by briefly recapturing the system’s three phases of development. It discusses the system’s evolution from its birth all the way to the present. The article then explores three different meanings of a middle-aged Chinese intellectual property system – one for intellectual property reform, one for China, and one for the TRIPS Agreement and the global intellectual property community.

Joutsing At Windmills: Cervantes And The Quixotic Fight For Authorial Control, H. Parkman Biggs

Marquette Intellectual Property Law Review

Achieving the appropriate balance between the right of first authors to control the later use of their work and freedom for follow-on authors to further develop from that text has long been challenging. Currently, under United States law in particular, fair use stands as a nebulous to buffer between the two creative camps, granting a significantly limited right to the second author to work from the first authors’ text. While that tension excites its own debate, a less considered aspect of this tension involves the degree to which the first author might be creatively and productively affected by the follow-on …

Determining Enhanced Damages After Halo Electronics: Still A Struggle?, Veronica Corcoran

Marquette Intellectual Property Law Review

35 U.S.C. § 284 of the Patent Act allows district courts to use their discretion to award enhanced damages up to three times the amount found or assessed in the case of patent infringement. This Comment will consider how the Supreme court of the United States’ holding in Halo Electronics, Inc. v. Pulse electronics, Inc. changed the landscape of enhanced damages awards in light of willful infringement.

First, this Comment will examine the Federal Circuit’s approach that now embraces both an objective and subjective inquiry in determining enhanced damages, which may resolve the concern over the rigidity in the Seagate …

Failure Is Not Falling Down But Refusing To Get Up: Implication Of Huawei/Zte Framework (Cjeu 2015) In Europe, 17 J. Marshall Rev. Intell. Prop. L. 326 (2018), Ashish Bharadwaj, Dipinn Verma

UIC Review of Intellectual Property Law

The jurisprudence on standard-essential patents (SEPs) has evolved substantially in the last few years, particularly in the European jurisdictions, where EU courts have dealt with certain FRAND and antitrust issues in an unambiguous and novel manner. The 2015 landmark judgement in Huawei v. ZTE by the Court of Justice of the European Union brought clarity in understanding ‘unwilling licensee’ and laid down terms under which the holder of a FRAND-compliant SEP can seek injunctive relief that does not amount to an abuse of its dominant position. Four important judgements in Germany followed, where the regional courts have applied the CJEU …

Sovereign Patent Funds, Xuan-Thao Nguyen

Articles

No abstract provided.

Fair Use & Fair Play: Olympic Marketing In The Information Age, Alex Locke

Cardozo International & Comparative Law Review

The note critiques the overreach of intellectual property protections surrounding the Olympics, which have led to hyperlitigation, stifled public engagement, and disproportionately harmed smaller entities while benefiting large corporations. It proposes reforming the Ted Stevens Olympic and Amateur Sports Act by incorporating a fair use framework, modeled after the Copyright Royalty Board, to balance intellectual property enforcement with public participation and transparency. This approach aims to address the challenges posed by ambush marketing and sponsorship protection in the modern media landscape while ensuring equitable opportunities for all stakeholders.

Liability For Providing Hyperlinks To Copyright-Infringing Content: International And Comparative Law Perspectives, Jane C. Ginsburg, Luke Ali Budiardjo

Faculty Scholarship

Hyperlinking, at once an essential means of navigating the Internet, but also a frequent means to enable infringement of copyright, challenges courts to articulate the legal norms that underpin domestic and international copyright law, in order to ensure effective enforcement of exclusive rights on the one hand, while preserving open communication on the Internet on the other. Several recent cases, primarily in the European Union, demonstrate the difficulties of enforcing the right of communication to the public (or, in U.S. copyright parlance, the right of public performance by transmission) against those who provide hyperlinks that effectively deliver infringing content to …

Owning The Right To Open Up Access To Scientific Publications, Lucie Guibault

Articles, Book Chapters, & Popular Press

Whether the researchers themselves, rather than the institution they work for, are at all in a position to implement OA principles actually depends on the initial allocation of rights on their works. Whereas most European Union Member States have legislation that provides that the copyright owner is the natural person who created the work, the copyright laws of a number European countries, including those of the Netherlands and the United Kingdom, establish a presumption, according to which the copyright of works made in the course of employment belongs initially to the employer, which in this case would be the university. …

Slipping Through The Cracks: How Digital Music Streaming Cuts Corners On Artists’ Royalty Revenues Globally, Frances Lewis

Brooklyn Journal of International Law

At a time when the digital distribution of music is dominating the music industry, there are more music consumers than ever. This makes it vitally important for performing artists to receive the credit they are due. An inherent problem in music’s digital distribution market is that music streaming companies often fail to acquire proper licenses to expand their music libraries faster than their competitors. Performing artists who may not have the same income stream as their A-list counterparts often cannot bear the cost of litigation to pursue uncredited royalties. The U.S. class action model provides performing artists with a legal …

The Supreme People's Court's Annual Report On Intellectual Property Cases (2016) (China), Tianyi (Tammy) Wu, Xiaoyang Wang

Washington International Law Journal

The Supreme People’s Court of China began publishing its Annual Report on Intellectual Property Cases in 2008. The Annual Report summarizes intellectual property cases, such as patent, trademark, copyright, trade secrets, and unfair competition cases. This 2016 Annual Report examines 27 cases and includes general guidelines for legal application. It reflects the Supreme People’s Court’s thoughts and approaches for ruling on new, difficult, and complex IP and competition cases.

Background Note: Standard Essential Patents, Innovation And Competition: Challenges In India, Arpan Banerjee

IP Theory

In September 2014, a few months after a landslide election victory, the Indian Prime Minister Narendra Modi announced the launch of “Make in India,” an ambitious program designed to turn India into a global manufacturing hub. One of the factors widely thought to be responsible for Modi’s victory was support from India’s “neo-middle class”—a young, newly- urbanized section of the electorate seeking employment and improved living standards but struggling amidst an economic downturn. In a speech inaugurating Make in India, Modi linked the program with the aspirations of this section of society. Modi stated the need to elevate the status …

Enforcement Of Intellectual Property At Trade Shows: A Comparative Perspective, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble presented these materials via webcast at a Roundtable on Protecting and Enforcing IP in the Trade Show Context hosted by the United States Patent and Trademark Office's Global Intellectual Property Academy in Alexandra, Virginia. Professor Trimble discussed various enforcement routes and their respective challenges. She also introduced mechanisms available in Europe and compared them to current mechanisms in the United States.

Ip Enforcement Under The Tpp: Civil And Administrative Procedures And Remedies, Provisional Measures In Tpp (Articles, 18.71-18.76), J. Janewa Osei-Tutu

Articles

No abstract provided.

Data Collection And The Regulatory State, Hillary Green, James Cooper, Ahmed Ghappour, Felix Wu

Articles

The following remarks were given on January 27, 2017 during the Connecticut Law Review's symposium, "Privacy, Security & Power: The State of Digital Surveillance."

The Domino Effect: How Inadequate Intellectual Property Rights In The Fashion Industry Affect Global Sustainability, Cassandra Elrod

Indiana Journal of Global Legal Studies

This note discusses an unexplored problem at the nexus of fashion and intellectual property law: how "fast fashion" leads to unsustainability of global resources and human rights issues pertaining to overseas manufacturing facilities. This unnecessary chain of events could be avoided if fashion designers were granted more substantial intellectual property rights rather than an overall lack of protection. Instead of turning a blind eye to the consequences of consumer demand and "fast fashion," Congress needs to address these issues head on through legislation that mirrors some of the copyright protections afforded fashion designers overseas

A Picture's Worth: The Future Of Copyright Protection Of User-Generated Images On Social Media, Elizabeth Tao

Indiana Journal of Global Legal Studies

In the current digital age, the internet is teeming with personal websites and social media posts. As more people around the world are becoming and staying connected to the internet, more stories and photos are sharing over social networking sites each second. Social media presents a ubiquitous platform to share one's life with others, but this accessibility comes at a price. This Note examines the history and present state of copyright law, within the framework of photography, to highlight the gaps within these laws as applied to personal works of art, like personal photographs, posted to social media sites. Social …

The World’S Trademark Powerhouse: A Critique Of China’S New Trademark Law, Xuan-Thao Nguyen

Seattle University Law Review

China has become the world’s trademark powerhouse with the largest number of trademark registrations for goods and services. Parallel to the new rise is the explosion of scandals concerning trademarked goods, causing numerous deaths, massive hospitalizations, and consumer defection from domestic brands. Instead of having a trademark law with consumer protection as the cornerstone, China’s new Trademark Law will cement China as the world’s manufacturer of trademarks. This Article is the first to critically examine China’s new Trademark Law. The new law mainly centers on creating procedural measures for more trademark registrations, maintaining China’s trademark registration powerhouse status, and perpetuating …

Two Steps Forward, One Step Back: A Need For China To Further Amend Its 2013 Trademark Law In Order To Prevent Trademark Squatting, Jessica Martin

Brooklyn Journal of International Law

This Note examines the effect that China’s 2013 Trademark Law amendments have had on curtailing the trademark squatting problem that plagues foreign corporations and individuals attempting to register a trademark in China. Trademarks play a crucial role in establishing brand recognition in an individual or a company’s product. Given China’s large and growing population of potential consumers, obtaining a Chinese trademark is especially valuable. Chinese trademark squatters, however, make this difficult for foreign corporations and individuals by filing for registration in China once the mark gains popularity, not intending to use the trademark in commerce, but to hold it as …

Chinese Patent Law's Statutory Damages Provision: The One Size That Fits None, Xiaowu Li, Don Wang

Washington International Law Journal

The concept of statutory damages was first introduced into the Chinese patent regime in 2001 as a “last-resort” approach for damages calculation in infringement cases. Curiously, in the following 15 years, this last-resort approach became so popular among the courts that it is essentially the exclusive approach today. This Article examines the legal and policy implications of the current statutory damages scheme, and concludes that the existence of statutory damages is fundamentally detrimental to the validity of the Chinese patent system. Therefore, we argue that the statutory damages provision in Article 65 of the Patent Law of China should be …

Future Of Innovation In Medicine: Incentives For New Medical Treatments And Global Health, Anon

Washington Journal of Law, Technology & Arts

A transcript of the symposium's proceedings.

Future Of Innovation In Medicine: Incentives For New Medical Treatments And Global Health, Robin Jacob

Washington Journal of Law, Technology & Arts

The Future of Innovation in Medicine Conference (“Conference”) proceedings contained in this Symposium Issue are about the problem of incentivizing research into new uses for established medicines. Putting the problem into the wider context of financing pharma research generally gives an important perspective.

Brazil’S New Path To Meaningful Intellectual Property Protection, Luiz Miranda

University of Miami Inter-American Law Review

Today in Brazil, it takes over eleven years to receive legal rights to an invention by means of a patent. This state of affairs provides inadequate intellectual property protection for inventors and businesses, hampering Brazil’s desire to accelerate innovation, entrepreneurship, and economic growth through a national patent system. But a new Joint Agreement between the Government of the United States and the Government of the Federative Republic of Brazil could mean rescue is on the way. Both governments agreed to engage in patent work sharing programs between the two patent offices, in hopes of increased efficiency. Yet, some scholars have …

The Patent And Non-Patent Incentives For Research And Development Of New Uses Of Known Pharmaceuticals In Japan, Toshiko Takenaka

Washington Journal of Law, Technology & Arts

Japan is one of most innovative drug manufacturer-friendly countries because it revised its patent and drug regulation systems for providing patent and non-patent incentives for new use and treatment R&D based on its pro-patent and pro-medical science policies. This article provides an overview of the pharmaceutical industry and examines patent and non-patent incentives for drug R&D in focusing on incentives for developing new uses of and treatments for known drugs from a comparative law perspective. After discussing the difficulties in establishing infringement and in obtaining injunctions against generic drug manufacturers who infringe new use product patents, the article reviews measure …

Infringement Of Swiss-Type Second Medical Use Patent Claims In Germany—Recent Developments In Case Law, Matthias Zigann

Washington Journal of Law, Technology & Arts

Following recent regional court decisions on the infringement of second medical use patent claims, the German concept of manifest arrangement—previously believed to provide a safe harbor for generic pharmaceutical companies as long as they skinny-labeled their products—may be subject to a new interpretation. The German decisions are part of a Europe wide series of decisions on the same or similar subject matter and prove to be patent owner friendly.

Innovation In Known Drugs—The European Angle, Galit Gonen

Washington Journal of Law, Technology & Arts

Research into new uses for known drugs should be encouraged because the “repurposing” of known drug molecules can be a highly effective route of innovation for pharmaceutical companies. Investment in the development of these products should be rewarded. However, incentives that are designed to reward innovation must be in line with the size and value of the innovation in order to maintain a sustainable balance between incentivizing research and developing and encouraging a competitive market. In the context of encouraging innovation of new uses for known drugs, factors that facilitate access to drug development and innovation should also be considered …

Session On "Geoblocking Tools And The Law" At Law, Borders, And Speech Conference At Stanford Law School, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble appeared on a panel at the Law, Borders, and Speech Conference hosted by The Center for Internet and Society at Stanford Law School on October 24, 2016. The session defined and discussed geoblocking and its implications for internet users, government, and private companies.

A video of the session is available here. Additionally, Professor Trimble's presentation is available here.

Commercial Creations: The Role Of End User License Agreements In Controlling The Exploitation Of User Generated Content, 16 J. Marshall Rev. Intell. Prop. L. 382 (2017), Neha Ahuja

UIC Review of Intellectual Property Law

This article considers the current licensing regime used to control the exploitation of copyright protected works within the online interactive entertainment sector—particularly virtual worlds including multiplayer online games—to further author new copyrightable works. This article aims to identify the gaps that have arisen on account of the nature of these subsequently authored works and the potential for their exploitation under the said licensing regime. Users and the proprietors of virtual worlds often end up in conflict over the monetization and commercialization of user generated content on account of contradictory yet overlapping rights created by copyright law when controlled by contract …

A Cure For Twitch: Compulsory License Promoting Video Game Live-Streaming, Yang Qiu

Marquette Intellectual Property Law Review

New technology always bring challenges to Chinese legislation. In recent years, based on technological development of network transmission, video game streaming platforms like “Twitch.tv” have made “big” money. The problem, however, is that the streaming content on those platforms involve copyrightable video games, which infringe game publishers’ copyright, if the streaming platform lacks authorization. And only a few of the streaming platforms and streamers have licenses from game publishers. Nowadays, most game publishers allow streaming to exist because they view the streaming as free advertisement for their games. By making these allowances, the game publishers stay in their fans’ good …