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Full-Text Articles in Intellectual Property Law

Choice In Government Software Procurement: A Winning Combination, Mclean Sieverding Feb 2006

Choice In Government Software Procurement: A Winning Combination, Mclean Sieverding

ExpressO

Governments are such significant purchasers of IT products and services that their purchasing decisions have a substantial impact on the world’s IT marketplace. This fact calls into question the wisdom of decisions by a few policymakers (on national, state, and local levels) around the world that have sought to require that governmental procurement officials give varying degrees of preference to open source software (OSS) when evaluating competing software solutions, claiming, among other things, that such preferences are justified because OSS is cheaper and more interoperable than proprietary software and needs government handicapping in order to enter the market to compete …

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Principles Of Fairness For International Economic Treaties: Constructivism And Contractualism, John Linarelli Jan 2006

Principles Of Fairness For International Economic Treaties: Constructivism And Contractualism, John Linarelli

ExpressO

No legal system deserving of continued support can exist without an adequate theory of justice. This paper is about the elaboration of a theory of justice to underpin international economic law and international economic institutions. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. There is yet no consensus on the public reason underpinning the rules and the institutions. Economic efficiency concepts are widely used in the assessment of the welfare effects of world trade institutions and policies. Efficiency, however, is one of several standards that may be used, but …

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Creative Industries In Developing Countries And Intellectual Property Protection, Lauren Loew Jan 2006

Creative Industries In Developing Countries And Intellectual Property Protection, Lauren Loew

Vanderbilt Journal of Entertainment & Technology Law

International intellectual property law (hereafter referred to as IP law) has an increasingly important significance for international trade and relations. From the music industry to the drug industry, intellectual property is a lucrative market, and both individuals and corporations have a lot to lose from the infringement of intellectual property rights. For example, music is a $40 billion worldwide industry. According to the Recording Industry Association of American (RIAA), the music industry loses approximately $4.2 billion each year to worldwide piracy. Although these facts bring to light the economic losses of industries and individuals from IP infringement, the global community …

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Paper Dragon: Inadequate Protection Of Intellectual Property Rights In China, Omario Kanji Jan 2006

Paper Dragon: Inadequate Protection Of Intellectual Property Rights In China, Omario Kanji

Michigan Journal of International Law

This Note will explore the extent to which China is in violation of its obligations under TRIPs. Section I surveys the current state of IPR infringement in China. Section II analyzes relevant TRIPs provisions, case law, and treaties that supplement TRIPs provisions. Section III analyzes Chinese criminal law, the December 2004 Judicial Interpretation of Chinese criminal law, and Chinese IP law as they pertain to IPR infringement. Section IV outlines enforcement efforts in China against the backdrop of the law analyzed in the previous section. Section V evaluates these enforcement efforts given China's capabilities and obligations, and Section VI concludes …

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Power, Norms, And International Intellectual Property Law, Tai-Heng Cheng Jan 2006

Power, Norms, And International Intellectual Property Law, Tai-Heng Cheng

Michigan Journal of International Law

This Article begins with the premise that international law is the net result of global processes of interactions among state and non-state participants in the international system. The Article builds on the author’s previous work by proposing a theory of international law that fills the interstices between private and public international law. Participants generally deploy power and invoke legal and social norms in pursuit of interests and in response to the strategies of other participants. Eventually, outcomes that reflect both power and norms result, and these outcomes in turn modify norms and reallocate power. New outcomes then follow in future …

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Traditional Knowledge And The Fight For The Public Domain, 5 J. Marshall Rev. Intell. Prop. L. 317 (2006), Doris E. Long Jan 2006

Traditional Knowledge And The Fight For The Public Domain, 5 J. Marshall Rev. Intell. Prop. L. 317 (2006), Doris E. Long

UIC Review of Intellectual Property Law

What are the challenges facing the protection of traditional knowledge internationally? Can the protection of such rights, which have traditionally existed outside the boundaries of intellectual property, be achieved in the face of current challenges to protections epitomized by such emerging international movements as enhanced access to information and culture as a human right? This article examines some of the emerging issues in this hotly contested area and suggests that such movements, which are not adverse to intellectual property and traditional knowledge rights, should be used to craft a new method for addressing the issue of traditional knowledge protection internationally.

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What Do We Owe Each Other In The Global Economic Order?: Constructivist And Contractualist Accounts, John Linarelli Jan 2006

What Do We Owe Each Other In The Global Economic Order?: Constructivist And Contractualist Accounts, John Linarelli

Scholarly Works

No legal system deserving of continued support can exist without an adequate theory of justice. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. This paper examines two accounts of fairness found in moral philosophy, those of John Rawls and Tim Scanlon. The Rawlsian theory of justice is well-known to legal scholars. Scanlon's contractualist account may be less well-known. The aim of the paper is to start the discussion as to how fairness theories can be used to develop the tools for examining international economic policies and institutions. After elaborating …

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Motion Picture Piracy: Controlling The Seemingly Endless Supply Of Counterfeit Optical Discs In Taiwan, Stephen K. Shiu Jan 2006

Motion Picture Piracy: Controlling The Seemingly Endless Supply Of Counterfeit Optical Discs In Taiwan, Stephen K. Shiu

Vanderbilt Journal of Transnational Law

Annually, Hollywood loses roughly $3.5 billion dollars in revenue to optical disc piracy in Taiwan. Optical disc piracy involves the camcording or copying of motion pictures onto laserdiscs, digital versatile discs, or video compact discs. Through the U.S. Trade Representative's satellite enforcement offices in Taiwan and coordination with the Taiwanese legislature and enforcement agencies, the U.S. motion picture companies have been able to influence some change in the frequency and severity of optical disc piracy in Taiwan. This can be mainly attributed to the Motion Picture Association of America's alliance with the U.S. Trade Representative in placing Taiwan on numerous …

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Cracks In The Great Wall: Why China's Copyright Law Has Failed To Prevent Piracy Of American Movies Within Its Borders, Jordana Cornish Jan 2006

Cracks In The Great Wall: Why China's Copyright Law Has Failed To Prevent Piracy Of American Movies Within Its Borders, Jordana Cornish

Vanderbilt Journal of Entertainment & Technology Law

This note examines the current state of China's intellectual property rights protection as it relates to movie piracy. Part I examines the different types of film piracy occurring in China and the current severity of the problem for the United States motion picture industry. Part II traces the history of copyright law in China and examines China's commitments under the international copyright treaties it has signed with the United States and other nations through its recent accession to the WTO. Part III discusses why movie piracy in China is still on the rise despite these commitments and highlights why cultural, …

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The New Challenges To The International Patentability Of Biotechnology: Legal Relations Between The Wto Treaty On Trade-Related Aspects Of Intellectual Property Rights And The Convention On Biological Diversity, Jonathan Curci Dec 2005

The New Challenges To The International Patentability Of Biotechnology: Legal Relations Between The Wto Treaty On Trade-Related Aspects Of Intellectual Property Rights And The Convention On Biological Diversity, Jonathan Curci

Brigham Young University International Law & Management Review

No abstract provided.

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Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai Nov 2005

Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai

Seattle Journal for Social Justice

No abstract provided.

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Intellectual Property, Trade & Development: The State Of Play, Daniel J. Gervais Nov 2005

Intellectual Property, Trade & Development: The State Of Play, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

This Article considers, first, available economic, social, and cultural analyses of the impact of intellectual property protection in developing countries. Economics provides a useful set of analytical tools and are directly relevant, in particular since the successfully arranged marriage of IP and trade rules after which it became inevitable that IP rules would be measured using an economic yardstick. The Paper also considers the claim that making proper intellectual property policy is impossible or inherently unreliable because theoretical models are inadequate or valid empirical data unavailable. Against this backdrop, the Article then examines the emergence of the World Trade Organization …

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A Mathematical Approach To Benefit-Detriment Analysis As A Solution To Compulsory Licensing Of Pharmaceuticals Under The Trips Agreement, Vishal Gupta Oct 2005

A Mathematical Approach To Benefit-Detriment Analysis As A Solution To Compulsory Licensing Of Pharmaceuticals Under The Trips Agreement, Vishal Gupta

Cardozo Journal of International and Comparative Law

The note proposes a mathematical approach to benefit-detriment analysis as a solution to the challenges posed by compulsory licensing of pharmaceuticals under the TRIPS Agreement. The core argument is that a socio-economic framework, comparing the monetary detriment to pharmaceutical companies (D) with the aggregate societal benefit (H x C), where H is the average health benefit per person and C is the number of affected citizens, can provide a balanced and objective method to determine when compulsory licenses should be granted. This approach aims to address the "Paragraph 6 problem" and improve access to essential medicines in developing countries while …

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Still Dissatisfied After All These Years: Intellectual Property, Post-Wto China, And The Avoidable Cycle Of Futility, Peter K. Yu Oct 2005

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

Faculty Scholarship

Commentators have widely discussed the piracy and counterfeiting problems in China. Every year, the United States is estimated to lose billions of dollars due to piracy and counterfeiting in the country alone. Published as part of the U.S.-China Trade: Opportunities and Challenges Symposium, this Essay focuses on the recent debate about whether the U.S. administration should file a formal complaint against China with the Dispute Settlement Body of the World Trade Organization over inadequate enforcement of intellectual property rights.

The Essay begins by articulating four reasons why the administration should not do so. It then compares the approach recently proposed …

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Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor Sep 2005

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

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Trademark Assignment "With Goodwill": A Concept Whose Time Has Gone, Irene Calboli Sep 2005

Trademark Assignment "With Goodwill": A Concept Whose Time Has Gone, Irene Calboli

Research Collection Yong Pung How School Of Law

Historically, starting from the premise that trademark protection is about consumer welfare, trademark law has required trademarks to be assigned with the goodwill of the business to which they refer, to deter assignees from changing the quality of the marked products. Yet, ever since its adoption, this rule has been hard to enforce because it hinges on a concept that is ambiguous and difficult to frame in a legislative context: trademark goodwill. Additionally, regardless of this rule, trading in trademarks has been a recurrent practice in the business world, and trademark practices have traditionally provided instruments to assist this trade. …

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An Analysis Of The Duties And Obligations Of The International Legal Community To The Eradication Of Poverty And Growth Of Sustainable Development In Light Of The Jus Cogens Nature Of The Declaration Of The Right To Development, Freda R. Murray-Bruce Aug 2005

An Analysis Of The Duties And Obligations Of The International Legal Community To The Eradication Of Poverty And Growth Of Sustainable Development In Light Of The Jus Cogens Nature Of The Declaration Of The Right To Development, Freda R. Murray-Bruce

ExpressO

This paper examines the copious problem of world poverty affecting half of the world’s population in the South and assesses the international legal obligations of the international legal community, viz., developed states, transnational corporations and the international financial institutions of the IMF, World Bank and WTO to the eradication of poverty and the growth of sustainable development, in view of the inviolability and peremptory nature of the Charter of the UN, and the international human rights provisions arising therefrom. To this extent, we examine the 1986 General Assembly Declaration on the Right to Development, along with the other International Bill …

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Principles Of Fairness For International Economic Treaties: Constructivism And Contractualism, John Linarelli Aug 2005

Principles Of Fairness For International Economic Treaties: Constructivism And Contractualism, John Linarelli

ExpressO

No legal system deserving of continued support can exist without an adequate theory of justice. This paper is about the elaboration of a theory of justice to underpin international economic law and international economic institutions. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. There is yet no consensus on the public reason underpinning the rules and the institutions. Economic efficiency concepts are widely used in the assessment of the welfare effects of world trade institutions and policies. Efficiency, however, is one of several standards that may be used, but …

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From International Law To Law And Globalization, Paul Schiff Berman Jul 2005

From International Law To Law And Globalization, Paul Schiff Berman

ExpressO

International law’s traditional emphasis on state practice has long been questioned, as scholars have paid increasing attention to other important – though sometimes inchoate – processes of international norm development. Yet, the more recent focus on transnational law, governmental and non-governmental networks, and judicial influence and cooperation across borders, while a step in the right direction, still seems insufficient to describe the complexities of law in an era of globalization. Accordingly, it is becoming clear that “international law” is itself an overly constraining rubric and that we need an expanded framework, one that situates cross-border norm development at the intersection …

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Taking 'Trade And Culture' Seriously: Geographical Indications And Cultural Protection In Wto Law , Tomer Broude Jun 2005

Taking 'Trade And Culture' Seriously: Geographical Indications And Cultural Protection In Wto Law , Tomer Broude

ExpressO

The regulation of the relationship between international trade law and cultural protection is one of the challenges that the World Trade Organization (WTO) will be facing with greater intensity in the second decade of its existence. This paper approaches the problem as it is reflected in the current debate on Geographical Indications (GIs) for food and wine products in the WTO. It seeks to take 'trade and culture' seriously, looking not only at law's effects on trade but also on culture, and to examine the extent to which legal restrictions on international trade can in fact prevent the degradation of …

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Sharing Potential And The Potential For Sharing: Open Source Licensing As A Legal And Economic Modality For The Dissemination Of Renewable Energy Technology, Jason Wiener May 2005

Sharing Potential And The Potential For Sharing: Open Source Licensing As A Legal And Economic Modality For The Dissemination Of Renewable Energy Technology, Jason Wiener

ExpressO

No abstract provided.

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The Drm Dilemma: Re-Aligning Rights Under The Digital Millennium Copyright Act, Jacqueline D. Lipton May 2005

The Drm Dilemma: Re-Aligning Rights Under The Digital Millennium Copyright Act, Jacqueline D. Lipton

ExpressO

The Digital Millennium Copyright Act (‘DMCA’) prevents unauthorized copying and distribution of digital copyright works by regulating devices that can be used to circumvent Digital Rights Management (‘DRM’) measures that are used to restrict access to those works. A significant problem is that those devices, like many new technologies, have the potential to be used for both socially harmful and socially beneficial purposes. There is no obvious way for Congress to regulate circumvention devices to prevent the social harms, while at the same time facilitating the social benefits they might provide. Recent judicial interpretations of the DMCA have unsurprisingly erred …

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The Expansion Of Intellectual Property Rights By International Agreement: A Case Study Comparing Chile And Australia’S Bilateral Fta Negotiations With The U.S., Ralph G. Fischer Mar 2005

The Expansion Of Intellectual Property Rights By International Agreement: A Case Study Comparing Chile And Australia’S Bilateral Fta Negotiations With The U.S., Ralph G. Fischer

ExpressO

This paper attempts to address the ongoing debate regarding the expansion of intellectual property rights (IPRs) through international negotiations. Commentators have described three theories that purport to explain the growing scope of IPRs in international law, as reflected in international agreements: that these agreements reflect coercion by economically powerful nations; that they are the products of lobbying by multinational corporations; and that they represent autonomous, welfare-enhancing instruments that benefit all parties. The article tests these theories by using a case study comparing free trade agreement negotiations that the United States recently concluded with a less developed country, Chile, and with …

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General Exclusion Orders Under Section 337, Gary M. Hnath Jan 2005

General Exclusion Orders Under Section 337, Gary M. Hnath

Northwestern Journal of International Law & Business

Your company, Widgets Unlimited, imports foreign-made widgets into the United States. One day, you're informed that U.S. Customs & Border Protection (Customs) has detained your goods and is determining whether they infringe a patent owned by The American Widget Corporation, based on an exclusion order issued by the International Trade Commission (ITC) after a recent ITC investigation, titled Certain Widgets with Extra Shiny Surfaces. Since you were never a party to any proceeding at the ITC, and indeed, you never even knew American Widget had patents on its widgets, you conclude that there must be some mistake and wait for …

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Staying Within The Negotiated Framework: Abiding By The Non-Discrimination Clause In Trips Article 27, Kevin J. Nowak Jan 2005

Staying Within The Negotiated Framework: Abiding By The Non-Discrimination Clause In Trips Article 27, Kevin J. Nowak

Michigan Journal of International Law

This Note argues that the Panel in Canada-Generic Medicines correctly decided that the non-discrimination clause in Article 27 applies to the exceptions of Articles 30 and 31. Because Article 27 is the guiding force of Section 5, any exceptions to the rights granted under Section 5 must comply with the requirements set forth in Article 27. Although extreme applications of the non-discrimination clause could be limiting upon some exceptions, Articles 30 and 31 were not placed into TRIPs as complete escape clauses from the framework of Section 5. Additionally, the application of the non-discrimination clause to Articles 30 and 31 …

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Adrift On A Sea Of Troubles: Cross-Border Art Loans And The Specter Of Ulterior Title, Norman Palmer Jan 2005

Adrift On A Sea Of Troubles: Cross-Border Art Loans And The Specter Of Ulterior Title, Norman Palmer

Vanderbilt Journal of Transnational Law

The purpose of this Article is to show how modern law responds to such challenge. In particular, it examines the means by which common law systems manage the return of unlawfully removed cultural objects to dispossessed parties, and the implications of those means for international loan agreements. Regard is paid to the remedies that may be available in the aftermath of a claim, and the "self-help" devices that are available to lenders and borrowers. Some of the measures examined are peculiar to cultural objects, but others are general. Some have no direct relation to law, but work on voluntary regulation. …

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A Choice-Of-Law Rule For Conflicts Involving Stolen Cultural Property, Symeon C. Symeonides Jan 2005

A Choice-Of-Law Rule For Conflicts Involving Stolen Cultural Property, Symeon C. Symeonides

Vanderbilt Journal of Transnational Law

Combating illicit trade in stolen cultural property is and will continue to be a serious problem. Of all the measures that various states can take in combating this trade, the adoption of a choice-of-law rule would rank very low in importance and effectiveness. Even if one thinks only in terms of legal rules, there is little question that international conventions and agreements, criminal and other public-law statutes, and uniform substantive rules would be far more direct and effective than choice-of-law rules. At the same time, these other rules are much more difficult to adopt precisely because they presuppose a degree …

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The Trust And Distrust Of Intellectual Property Rights, Peter K. Yu Jan 2005

The Trust And Distrust Of Intellectual Property Rights, Peter K. Yu

Faculty Scholarship

In the past, intellectual property issues were considered complex, obscure, and highly technical; they were only of interest and concern to intellectual property attorneys, legal scholars, technology developers, and rightsholders. Thanks to the Internet and new communications technologies, however, intellectual property has now begun to play a more significant role in society.

In December 2003, the first phase of the World Summit on the Information Society (WSIS) was held in Geneva. While the conference affirmed the importance of intellectual property rights and free access to information and knowledge, the resulting Declaration of Principles and Plan of Action fail to address …

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Towards A New Core International Copyright Norm: The Reverse Three-Step Test, Daniel J. Gervais Jan 2005

Towards A New Core International Copyright Norm: The Reverse Three-Step Test, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

This paper argues that international copyright treaties, such as the WTO TRIPS Agreement, should no longer be developed as sets of minimum standards with a standardized exception filter, namely the three-step test, but rather include a normative standard for the copyright rights themselves. In seeking harmony between rights and exceptions, and in light of copyright haphazard evolution (by simply adding new rights when a new way of using protected content was invented), a single new core norm is proposed: the reverse three-step test.

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Hyperownership In A Time Of Biotechnological Promise: The International Conflict To Control The Building Blocks Of Life, Sabrina Safrin Oct 2004

Hyperownership In A Time Of Biotechnological Promise: The International Conflict To Control The Building Blocks Of Life, Sabrina Safrin

Rutgers Law School (Newark) Faculty Papers

This article addresses the corrosive interplay between the patent-based and the sovereign- based systems of ownership of genetic material. In patent-based systems, genetic material is increasingly “owned” by corporations or research institutions which obtain patents over such material. In sovereign-based systems, the national government owns or extensively controls such material. As more patents issue for synthesized genes in developed countries through the patent system, more raw genetic material is legally enclosed by the governments of developing nations, which house most of the world’s wild or raw genetic material. This interactive spiral of increased enclosure results in the sub-optimal utilization, conservation …

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