Intellectual Property Law Commons^™

Digital Music Sampling And Copyright Policy - A Bittersweet Symphony? Assessing The Continued Legality Of Music Sampling In The United Kingdom, The Netherlands, And The United States, Melissa Hahn

Georgia Journal of International & Comparative Law

No abstract provided.

Still Dissatisfied After All These Years: Intellectual Property, Post-Wto China, And The Avoidable Cycle Of Futility, Peter K. Yu

Georgia Journal of International & Comparative Law

No abstract provided.

A Globally Sustainable Right To Land: Utilizing Real Property To Protect The Traditional Knowledge Of Indigenous Peoples And Local Communities, Jennifer Lynn Zweig

Georgia Journal of International & Comparative Law

No abstract provided.

Who's Virus Is It Anyway? How The World Health Organization Can Protect Against Claims Of "Viral Sovereignty", Jason Carter

Georgia Journal of International & Comparative Law

No abstract provided.

The Globalization Of Intellectual Property Rights: Trips, Bits, And The Search For Uniform Protection, Alan M. Anderson, Bobak Razavi

Georgia Journal of International & Comparative Law

No abstract provided.

Moving All-In With The World Trade Organization: Ignoring Adverse Rulings And Gambling With The Future Of The Wto, Paul Rothstein

Georgia Journal of International & Comparative Law

No abstract provided.

The Positive And Negative Consequences Of The European Union Court Of Justice's Amazon Decision On International Private Copying And America, Jaclyn Kavendek

Catholic University Law Review

No abstract provided.

The Controversy Of Trade In Tobacco And Protection Ofpublic Health, A Study Of Tobacco Control Measures Andimpacts On Trademark Practice: The Stricter, The Better?, Nattapong Suwan-In

Indonesian Journal of International Law

This paper investigates the anticipated trademark problems may result from tobacco control regulations, particularly the warning label requirements implemented in WTO members and the stricter regulation of plain packaging promulgated in Australia (“tobacco measures”). Following the adoption of the Framework Convention on Tobacco Control (“FCTC”) in May 2003 (enforce by February 2005), member countries tend to seek for possibilities to implement and use stricter approach to achieve their public health policy. As the core concept and main goal of WTO is trade liberalization, regardless of types of goods traded among members, whereas the stricter restriction on trademark use means the …

Multipolarity, Intellectual Property And The Internationalization Of Public Health Law, Sam F. Halabi

Faculty Publications

This Article critically examines the proliferation of international legal agreements addressing global health threats like the outbreak of infectious diseases, tobacco use and lack of access to affordable medicines. The conventional wisdom behind this trend is that a global normative shift has occurred which has caused states to regard health as “special” and less subject to the normal rules of international law making because health threats endanger all of humanity. This Article challenges that thesis, arguing that at the same time the number and scope of international health law treaties has grown, developed states have subordinated health law to intellectual …

Counterfeiting: A Challenge To Forensic Science, The Criminal Justice System, And Its Impact On Pharmaceutical Innovation, Pauline Elizabeth Leary

Dissertations, Theses, and Capstone Projects

Counterfeit drugs threaten public health and present unique and complex challenges to the criminal justice system and the field of forensic science. Theft of intellectual property in the pharmaceutical industry has caused sickness and death, and it is necessary that the perpetrators of these crimes are brought to justice. In some cases, threats to health and safety are short term; in others they are long term. This research describes these threats in detail.

The problem is complex, and there are many important factors that need to be considered to successfully address the problem. Public-health challenges, drug-development challenges, legal challenges, issues …

Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble presented these materials at the Third International Intellectual Property Scholars Roundtable, which was held at the DePaul University College of Law on May 1, 2014.

Don’T Get Slammed Into Nefer Nefer Land: Complaints In The Civil Forfeiture Of Cultural Property, Victoria A. Russell

Pace Intellectual Property, Sports & Entertainment Law Forum

The Saint Louis Art Museum, known as SLAM, acquired the mask of Ka-Nefer-Nefer in 1998. Eight years later, the Egyptian Supreme Council of Antiquities called for its return on the grounds that it had been stolen from the Egyptian Museum in Cairo. SLAM refused. In 2011, the case went before the United States District Court for the Eastern District of Missouri to determine the ownership of the mask. Perhaps to the surprise of many, the court decided that the mask belongs in Saint Louis.

This Article will explain how this case was properly decided, albeit on a legal technicality. It …

Following An International Copyright Regime At A Large National Cost: Is It Worth It?, Vaishali Khatri

The Journal of Business, Entrepreneurship & the Law

The main question at issue is which view of copyright law the United States should adhere to. Founders of American copyright law based our Constitution on utilitarian principles that promote the spread of knowledge and information to the general public. It has always been held that innovation and creativity were of core importance in an efficiently functioning democracy. With the passing of Section 514, the United States digressed from its national roots in order to comply with an international regime of copyright law. This decision in Golan takes steps to afford private economic benefit to a few copyright holders at …

Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble

Maryland Law Review

No abstract provided.

King Tut And Tahrir Square: The Egyptian Revolution Of 2011 And The Advantage Of Viewing Cultural Heritage Destruction Through A Right To Culture Lens, Zoe Niesel

Faculty Articles

No abstract provided.

Protecting Traditional Knowledge In International Intellectual Property Law: Imperatives For Protection And Choice Of Modalities, 14 J. Marshall Rev. Intell. Prop. L. 25 (2014), Tesh Dagne

UIC Review of Intellectual Property Law

The need for protecting traditional knowledge (TK) has been acknowledged in discussion and negotiations under the umbrella of a number of inter-governmental organizations that deal with biodiversity, the environment, indigenous peoples’ rights, human rights, food and agriculture, among others. It has, however, proved difficult to arrive at a consensus on the proper modality that can serve the needs and desires of Indigenous and Local Communities (ILCs) in their economic and cultural participation. The article examines the imperatives for the protection of TK and explores the modalities of TK protection at the international level for regulating the control of, access to …

Collateral Damage: Protecting Cultural Heritage In Crimea And Eastern Ukraine, Zoe Niesel

Faculty Articles

Since the early spring of 2014, the world has watched Russia utilize military forces to invade and annex territory belonging to Ukraine. These actions are, unsurprisingly, raising concerns in Eastern Europe over the prospect of armed conflict in the region, the political consequences of Russian annexation of Ukrainian territory, and the effect of this conflict on ordinary civilians. But there is another potential cost associated with Russia's actions that should not be overlooked - the loss of Ukrainian cultural heritage. History is replete with examples of the destruction of cultural heritage during periods of instability, from Napoleon's systematic looting of …

How Trade Law Changed: Why It Should Change Again, John Linarelli

Scholarly Works

No abstract provided.

The Reasonable Information Security Program, Peter Sloan

Richmond Journal of Law & Technology

Our information inhabits a perilous world. Cyber theft, cyber extortion, mobile device loss, misappropriation of confidential business information, and unauthorized disclosures of protected information are real and present dangers for organizations of all sizes and across all industries.

The Marrakesh Puzzle, Marketa Trimble

Scholarly Works

This article analyzes the puzzle created by the 2013 Marrakesh Treaty in its provisions concerning the cross-border exchange of copies of copyrighted works made for use by persons who are “blind, visually impaired, or otherwise print disabled” (copies known as “accessible format copies”). The analysis should assist executive and legislative experts as they seek optimal methods for implementing the Treaty. The article provides an overview of the Treaty, notes its unique features, and examines in detail its provisions on the cross-border exchange of accessible format copies. The article discusses three possible sources for implementation tools – choice of law rules, …

The Marrakesh Treaty For Visually Impaired Persons: Why A Treaty Was Preferable To Soft Law, Margot E. Kaminski, Shlomit Yanisky-Ravid

Publications

This paper addresses the debates leading up to the recently adopted international treaty on copyright exceptions for the visually impaired, the Marrakesh International Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. This treaty was successfully adopted by the World Intellectual Property Organization (WIPO) in June 2013.

Leading up to the negotiation of this instrument, multiple UN member states pushed for the instrument to be negotiated as soft law instead of a treaty. We argue that making this instrument soft law would have precluded its success. WIPO thus correctly chose to …

The Protection Of Geographical Indications In The Inter-American Convention, Christine Farley

Scholarly Articles in Law Reviews & Journals

The international community is currently deeply divided over the appropriate level of protection for Geographical Indications (“GIs”). This conflict has recently come to a head in the negotiations over the Transatlantic Trade and Investment Partnership Agreement (TTIP). GIs receive extensive protections within the European Union (EU) that go beyond international standards, while the United States is generally opposed to strengthening existing international GI protections. Given its current stance, it is remarkable that the US has since 1929 been bound by a little known international convention that ensures strong protection of GIs. Since that date, the US has been a member …

The Protection Of Geographical Indications In The Inter-American Convention, Christine Haight Farley

Scholarly Articles in Law Reviews & Journals

The international community is currently deeply divided over the appropriate level of protection for Geographical Indications (“GIs”). This conflict has recently come to a head in the negotiations over the Transatlantic Trade and Investment Partnership Agreement (TTIP). GIs receive extensive protections within the European Union (EU) that go beyond international standards, while the United States is generally opposed to strengthening existing international GI protections.

Given its current stance, it is remarkable that the US has since 1929 been bound by a little known international convention that ensures strong protection of GIs. Since that date, the US has been a member …

Asking The Right Questions In Copyright Cases: Lessons From Aereo And Its International Brethren, Rebecca Giblin, Jane C. Ginsburg

Faculty Scholarship

Aereo was a US-based service that made unique copies of broadcast programs from individual antennae for each requesting user, for individual retransmission near-live or at some point in the future. To the uninitiated, it makes no sense for a company to design a television transmission service that utilises thousands of tiny antennae and thousands of copies to deliver signals to users. Wouldn’t it be much more efficient to use just one of each? And surely, when it comes to copyright liability, wouldn’t more copies result in more infringement, not less? However, Aereo’s strategy made a lot of sense when viewed …

Letter From The U.S.: Exclusive Rights, Exceptions, And Uncertain Compliance With International Norms – Part Ii (Fair Use), Jane C. Ginsburg

Faculty Scholarship

This survey of recent U.S. fair use decisions examines the domestic evolution of the doctrine, particularly in light of the significant expansion of noninfringing “transformative” uses. The article also considers the U.S.’ compliance with its international obligations under the Berne Convention and the TRIPs Accord, and inquires whether the substantial enlargement of the application of the U.S. fair use exception exceeds the leeway that the Berne Convention, art. 9(2), WCT art. 10, and TRIPs art. 13 grant to member states to provide for exceptions and limitations to copyright.

Letter From The U.S.: Exclusive Rights, Exceptions, And Uncertain Compliance With International Norms – Part I (Making Available Right), Jane C. Ginsburg

Faculty Scholarship

This Letter from the U.S. addresses U.S. compliance with its international obligation to implement the “making available right” set out in art. 8 of the 1996 WIPO Copyright Treaty. The “umbrella solution” which enabled member states to protect the “making available to the public of [authors’] works in such a way that members of the public may access these works from a place and at a time individually chosen by them” through a combination of extant exclusive rights, notably the distribution right and the public performance right, has not in the U.S. afforded secure coverage of the full scope of …

A New Framework For Assessing Clinical Data Transparency Initiatives, Erika Lietzan

Faculty Publications

Biopharmaceutical companies submit vast amounts of clinical data and analysis to support approval of their medicines, expecting the information to be kept confidential, as has been the practice of regulators around the world for decades. Over the last ten years, however, pressure has been mounting for regulators or industry to release this information. Legal scholars have generally taken the view that no relevant doctrines or bodies of law preclude the release of this material and that public policy considerations compel its release. This article argues that the scholarship to date has overlooked key considerations: the special issues presented by operation …

Faustian Perspective On Digitization: Making A Deal With The Devil, Lucie Guibault

Articles, Book Chapters, & Popular Press

Digitization of library material, archives and museum collections, arts organizations repositories is progressing rapidly, and opens up new possibilities of accessing, using and re-using the knowledge embodied in cultural heritage. By giving new purpose and function to works, it enhances the value of the public domain and enriches the public sphere. However, digitization also creates the conditions for the rise of new proprietary entitlements over cultural objects. Such ‘informational monopolies’ are often justified as necessary to recoup the high costs of digitization, or as the basis to provide additional sources of income for the cultural institutions. At the same time, …

Copyright Crime And Punishment: The First Amendment's Proportionality Puzzle, Margot Kaminski

Publications

The United States is often considered to be the most speech-protective country in the world. Paradoxically, the features that have led to this reputation have created areas in which the United States is in fact less speech protective than other countries. The Supreme Court's increasing use of a categorical approach to the First Amendment has created a growing divide between the US. approach to reconciling copyright and free expression and the proportionality analysis adopted by most of the rest of the world.

In practice, the U.S. categorical approach to the First Amendment minimizes opportunities for judicial oversight of copyright. Consequently, …

The Influence Of The Andean Intellectual Property Regime On Access To Medicines In Latin America, Laurence R. Helfer, Karen J. Alter

Faculty Scholarship

This chapter is a contribution to "Balancing Wealth and Health: Global Administrative Law and the Battle over Intellectual Property and Access to Medicines in Latin America," Rochelle Dreyfuss & César Rodríguez-Garavito, eds. Part I of the chapter explains how the repeated interactions between the Andean Tribunal of Justice (ATJ) and domestic IP agencies in the Andean Community helped to build an effective IP rule of law and to solidify pro-consumer interpretations of regional patent and trademark rules. Part II documents how ATJ judges and agency officials enabled Andean governments to resist pressure from the United States and its pharmaceutical industry …