Intellectual Property Law Commons^™

New Federal And Provincial Personal Information Protection Legislation And Its Impact On Physicians And Public Hospitals, Evguania Prokopieva

Canadian Journal of Law and Technology

The focus of this article is to examine the implications of the new federal and Ontario personal data protection legislation for physicians and public hospitals. This article also inquires into whether the new legislation will contribute to the protection of patient privacy. By ‘‘physician’’ I mean a doctor in a broad sense – i.e., ‘‘a person who has been educated, trained, and licensed to practice the art and science of medicine’’. This will include family doctors, paediatricians, psychiatrists, surgeons, and other medical doctors covered by the Regulated Health Professions Act. By the term ‘‘public hospitals’’ I will refer to not-for-profit …

Genetic Use Restriction (Or Terminator) Technologies (Gurts) In Agricultural Biotechnology: The Limits Of Technological Alternatives To Intellectual Property, Chidi Oguamanam

Canadian Journal of Law and Technology

This article examines the adequacy of terminator technology as a potential substitute for traditional intellectual property. It acknowledges that the technology provides a stronger protection and reward mechanism than that offered by the traditional intellectual property rights regime. However, terminator technology or any other technology for that matter, is outside the pantheon of intellectual property regimes. Fundamentally, terminator is a technological answer to the quest by private sector interests to improve appropriability of returns on investments in agrobiotech. It potentially represents a panacea to the long standing industry struggle over the profitability of private research in agrobiotech and the need …

Whazup With The Whois?, Sheldon Burshtein

Canadian Journal of Law and Technology

The WHOIS is a database directory of domain names and relevant contact information maintained by each top-level domain (TLD) registry, which lists all relevant registrant contact information for each domain name registration. Through its contracts, the Internet Corporation for Assigned Names and Numbers (ICANN) requires registries and registrars to collect and display technical information and contact details for all registrants. The WHOIS is an important component of the domain name system (DNS). The WHOIS is used for a wide variety of purposes by registries, registrars, registrants, law enforcement authorities, consumers, and the general public. The WHOIS may enable identification of …

A Review Of Canadian Radiocommunications Law Around "Jammers", Tyson Macauley

Canadian Journal of Law and Technology

This comment argues that the Radiocommunications Act should be amended to relax the prohibition on specific types of ‘‘smart’’ jamming in the Industry Science Medicine (ISM) bands. Specifically, the legislation requires increased flexibility and granularity to accom- modate new wireless technologies in the ISM bands — particularly wireless LAN (WLAN) technologies like IEEEE 802.11b/IEEE 802.11g (WiFi), and IEEE 802.11a (henceforth collectively know as ‘‘ISM radios’’).

The availability of cheap, mass-produced ISM radios hardware and the proliferation of applications using the ISM spectrum bands of 2.4Ghz and 5Ghz present a variety of security and privacy concerns that cannot be effectively addressed …

Fundamentals Of Information Technology By Sunny Handa (Markham: Lexisnexis Canada Inc., 2004), Barbara Darby

Canadian Journal of Law and Technology

In the early 1990s, I purchased my first stereo with a CD player. I found myself trapped in a conversation with someone who tried to convince me that it was utter folly not to buy a turntable, because CD technology simply couldn’t replicate the ‘‘warmth’’ of vinyl. Had I only Handa’s book to hand, I could have provided a straight- forward and understandable explanation for why my records were well enough left in my parents’ basement; although ‘‘digitization . . . fails to record all characteristics of analog data, even at the highest finite sampling rate . . . Complete …

Trademark Law And The Social Construction Of Trust: Creating The Legal Framework For On-Line Identity, Beth Simone Noveck

Articles & Chapters

Trust is the foundation of society for without trust, we cannot cooperate. Trust, in turn, depends upon secure, reliable, and persistent identity. Cyberspace is thought to challenge our ability to build trust because the medium undermines the connection between online pseudonym and offline identity. We have no assurances of who stands behind an online avatar; it may be one person, it may be more, it may be a computer. The legal debate to date has focused exclusively on the question of how to maintain real world identity in cyberspace. But new "social software" technology that enables communities from eBay to …

The Future Of Copyright, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Review of Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity by Lawrence Lessig (2004).

Sometimes technological change is so profound that it rocks the foundations of an entire body of law. Peer-to-peer (P2P) filesharing systems--Napster, Gnutella, KaZaA, Grokster, and Freenet3--are mere symptoms of a set of technological innovations that have set in motion an ongoing process of fundamental changes in the nature of copyright law. The video tape recorder begat the Sony substantial noninfringing use defense. The digital cassette recorder begat the Audio Home Recording Act. The internet begat the Digital …

Proprietary Rights And Collective Action: The Case Of Biotechnology Research With Low Commercial Value, Arti K. Rai

Faculty Scholarship

No abstract provided.

Thinking Outside The Pandora's Box: Why The Dmca Is Unconstitutional Under Article I §8 Of The U.S. Constitution, Joshua L. Schwartz

ExpressO

No abstract provided.

Re-Reifying Data, James Gibson

Law Faculty Publications

There's a war on between those who view digital technology as a reason to expand intellectual property law and those who oppose this expansion. One front in the war is technological: the pro-expansionists enclose their products in restrictive code, which the anti-expansionists circumvent and hack. A second is legislative: the pro-expansionists seek extended copyright duration, favorable changes to contract law, and other new legal entitlements, while the anti-expansionists lobby for the opposite. And a third front is a combination of the first two: it is technological. On this battlefield, the pro-expansionists use the law to fortify their technological protections. But …

Better, Faster, Cheaper - Later: What Happens When Technologies Are Suppressed, Kurt M. Saunders, Linda Levine

Michigan Telecommunications & Technology Law Review

Some inventions never see the light of day. Others enter the spotlight after long delays and the factors that slowed the arrival of that innovation are ignored. Technology suppression is a real occurrence involving well known and widely used products. In this Article, we examine the topic of technology suppression, seeking to reveal the tactics of suppression and the patterns and conditions under which it occurs. Current examples of US technologies are used to highlight the significance of this phenomenon. We consider related factors, including market and innovation forces, and we identify suppressive tactics, using illustrative cases where patent nonuse …

The Experimental Purpose Doctrine And Biomedical Research, Tao Huang

Michigan Telecommunications & Technology Law Review

The experimental use doctrine is a common law rule in patent law that until a few years ago excused accused infringers who made and used patented products or processes on the basis of an experimental, educational, or nonprofit purpose when there was de minimis economic injury to the patent owner and de minimis economic gain to the infringer. While the application of the experimental purpose doctrine was always narrow, two recent Federal Circuit decisions indicate that there is not much left under its aegis. In Madey v. Duke University, the Federal Circuit strictly limited the application of the experimental purpose …

Fair's Fair: An Argument For Mandatory Disclosure Of Technological Protection Measures, Robert C. Denicola

Michigan Telecommunications & Technology Law Review

Section 1201(a)(1) of the Copyright Act prohibits the act of "circumvent[ing] a technological measure that effectively controls access to a work," including, for example, by-passing password protection or encryption intended to restrict access to paying customers. Section 1201(a)(2) prohibits the manufacture or sale of "any technology, product, service, device, component, or part thereof" primarily designed for the purpose of circumventing access controls on copyrighted works. Additionally, § 1202(b) prohibits the manufacture or sale of products, devices or services primarily designed to circumvent "a technological measure that effectively protects a right of a copyright owner"--for example, a technological measure intended to …

The Origins Of Cctld Policymaking, Peter K. Yu

Cardozo Journal of International and Comparative Law

The article explores the evolution of country-code top-level domain (ccTLD) policymaking, tracing its transition from an informal, ad hoc system managed by individuals like Jon Postel to a formalized, international governance structure under the Internet Corporation for Assigned Names and Numbers (ICANN). It highlights the power struggles between various stakeholders, including national governments, ICANN, and the Internet Assigned Numbers Authority (IANA), and discusses the implications for global internet governance.

The Icann Experiment, Susan P. Crawford

Cardozo Journal of International and Comparative Law

The article argues that the Internet Corporation for Assigned Names and Numbers (ICANN) derives its legitimacy primarily through a consensus-based governance model, rather than democratic or Administrative Procedure Act (APA)-style frameworks. While ICANN’s consensus model is imperfect and faces challenges such as holdouts and centralized decision-making tendencies, it remains the most viable approach for ensuring accountability, transparency, and global acceptance in internet governance. The article emphasizes that ICANN’s legitimacy depends on demonstrated consensus, as seen in its history, particularly in the development of the Uniform Dispute Resolution Policy (UDRP). It warns that shifting away from consensus toward centralized decision-making risks …

Theories Of Cyber-Sociology: Communicating Culture Through Codes, Erica Schlesinger Wass

Cardozo Journal of International and Comparative Law

The article explores the cultural and social significance of country code top-level domains (ccTLDs), arguing that they extend beyond technical identifiers to reflect national identity, values, and priorities. By examining the history, structure, and policies of ccTLDs, the author illustrates how these domains serve as tools for communication, cultural expression, and social change, influenced by a nation's unique history and societal norms.

An Examination Of Patents, Licensing, Research Tools, And The Tragedy Of The Anticommons In Biotechnology Innovation, Michael S. Mireles

University of Michigan Journal of Law Reform

The continued development of and affordable access to potentially life saving pharmaceuticals, gene therapies and diagnostics is unquestionably a socially important issue. However, crafting government policy to encourage the development of and allowing affordable access to those services and products is difficult. On one hand, the development of those services and products requires a large investment of funds because of the complexity, collaborative nature, and uncertainty of the development of those products and services. Accordingly, investors require the safety of strong and stable patent rights to ensure a return on their investment in the development of a commercial end-product or …

Protecting The Next Small Thing: Nanotechnology And The Reverse Doctrine Of Equivalents, Andrew Wasson

Duke Law & Technology Review

If even a fraction of the predictions about nanotechnology are realized, our society will be a dramatically different and better place than it is today. Yet, due to the infancy of the field, it is still unclear how traditional patent doctrine will be applied to nanotechnology. As it stands, the creators of nanoscale versions of traditional products might face infringement claims from traditional patent holders. The reverse doctrine of equivalents serves as a possible mechanism to equitably excuse the literal infringement of traditional patents by nanotech inventors in a way that encourages the progress of science.

Owning Music: From Publisher's Privilege To Composer's Copyright, Michael W. Carroll

ExpressO

More than four years after Napster demonstrated the power of the Internet as a means of distributing music, we still are in the midst of a cultural and legal debate about what the respective rights of music copyright owners, follow-on creators, disseminators, and purchasers should be. A common assumption underlying much of the debate is that whatever settlement emerges, it will apply equally to all forms of expression. This Article questions that assumption by investigating the early history of copyright in music.

For the first time in legal scholarship, the Article reveals and examines the distinct early history of copyright …

Media Policy Out Of The Box: Content Abundance, Attention Scarcity, And The Failures Of Digital Markets, Ellen P. Goodman

ExpressO

No abstract provided.

The Law Of Privacy In Canada (Student Edition) By Barbara A. Mcisaac, Rick Shields, Kris Klein (Toronto: Thomson Carswell, 2004), John D. Gregory

Canadian Journal of Law and Technology

To help lawyers advise their clients on their rights and obligations in this complex and novel field, the various legal publishers have offered an array of guides and textbooks analyzing the law of privacy. Thomson/Carswell turned for its book to the national law firm of McCarthy Tétrault. Three McCarthy lawyers (Barbara McIsaac, Rick Shields, and Kris Klein) are listed as authors of The Law of Privacy in Canada, and several others have contributed significant parts of the text, and they have done a creditable job in pulling it all together. It seems to be the only thorough and up-to-date analysis …

Three Years Under The Pipeda: A Disappointing Beginning, Christopher Berzins

Canadian Journal of Law and Technology

As of January 1, 2004, after a three-year phase-in period, the Personal Information Protection and Electronic Documents Act (PIPEDA) came fully into force. Although considerable uncertainty currently prevails due to unanticipated events such as the resignation and replacement of Commissioner George Radwanski and the late constitutional challenge by Quebec, there is now sufficient experience with the legislation to begin to assess how the PIPEDA is working. It is also a timely juncture to do so with the extension of the legislation to the provincially regulated private sector.

Privacy Of Genetic Information In Canada: A Brief Examination Of The Legal And Ethical Tools That Should Frame Canada's Regulatory Response, Stephen Orr

Canadian Journal of Law and Technology

This article investigates the legal and ethical tools that should inform Canada's regulation of the privacy of genetic information. We are the first generation faced with resolving the unique challenges presented by genetic information. Unfortunately, the patchwork of instruments that could regulate genetic information in Canada is insufficient. The prospect of Canadians increasingly generating genetic information without a satisfactory structure for protecting the information is rather alarming. It is therefore important that we commit to reexamining regulations regarding genetic information. Different loci of governance will likely be required. Canada should look to international law and comparative law for inspiration regarding …

No Lego, Yes Logo: The Federal Court Of Appeal Protects Innovation In Kirkbi Ag And Lego Canada Inc. V. Ritvik Holdings Inc., Sean Robertson

Canadian Journal of Law and Technology

This article will discuss the case at the trial and appellate levels. It will specifically address the underlying policy debate between the majority and the dissenting decisions at the Federal Court of Appeal. The author will compare this debate to two similar international cases involving Lego’s infamous intellectual property litigation. With this recent finding in the 40-year-old saga of international case law surrounding Lego’s trade-mark enforcement strategy, the Appeal Division of the Federal Court of Canada joins the ranks of several other courts that have similarly excluded protection for Lego based on the doctrine of functionality. The comment concludes with …

Video Surveillance, Evidence And Pipeda: A Comment On Ferenszy V. Mci Medical Clinic, Anne Uteck

Canadian Journal of Law and Technology

One of the most common uses of surveillance is in the area of evidence gathering for investigation by litigators. Private investigators have long been retained for this purpose, and law enforcement officers routinely utilize surveillance devices to assist in the prosecution of a crime. The admissibility of video surveillance evidence obtained by private and government investigators is obviously not a new issue. What has come to the fore- front is the application of the Personal Information Protection and Electronic Documents Act in the context of video surveillance evidence, and its impact on civil litigators. Privacy interests inherent in the collection, …

Case Comment: Society Of Composers, Authors And Music Publishers Of Canada V. Canadian Association Of Internet Service Providers, Barry Sookman

Canadian Journal of Law and Technology

The exponential growth of the Internet has raised serious issues related to liability for copyright infringement. Who should compensate authors and publishers for the use of their works? What activities constitute infringement? Are Internet intermediaries such as Internet service providers (ISPs) liable for infringement when they provide connectivity to subscribers, when they provide hosting services, or when they use caching technologies? Where does infringement occur? Is the scope of the Copyright Act limited to acts of infringement that occur wholly within Canada or does the Act apply to acts that take place partly in Canada and partly outside of Canada? …

Diamond V. Chakrabarty: Gauging Congress’ Response To Dynamic Statutory Interpretation By The Supreme Court , Anna E. Lumelsky

ExpressO

In this article, I consider the 1980 Supreme Court decision, Diamond v. Chakrabarty, and Congress’ response to it in light of several contemporary views on statutory interpretation. I conclude that in science and technology-related cases in which delay could significantly hamper the advancement of the field, the Supreme Court should interpret federal statutes dynamically in response to a changing social context, but should also attempt to conform its interpretations to legislative preferences in order to avoid a legislative override.

Technology Worth Patenting, Thomas G. Field Jr

Law Faculty Scholarship

Inevitably scarce resources are better invested in deciding which [patent] applications are worth filing and seeking the broadest defensible claims for those that are chosen. Whether a patent can be obtained for less than, say, $10,000 is the wrong question. Whether a patent is worth having is the better question—particularly from the standpoint of prospective licensees.

Essay, Digital Bowdlerizing: Removing The Naughty Bytes, Llewellyn Joseph Gibbons

ExpressO

Unlike Dr. Bowdler, who republished the works of Shakespeare with the naughty bits removed, the modern digital Bowdlerizer deletes offensive content from digital works in a variety of ways. This Essay will analyze the technologies used by the modern Bowdlerizer to determine when, if, and which technologies make copies in violation of the copyright owner’s § 106(1) right to control reproduction or make derivative copies of a preexisting work that may infringe the copyright owner’s 17 U.S.C. § 106(2) right to authorize the creation of derivative works. These technologies not only support militant prudery, but they also may add new …

Where Do High Tech Commercial Innovations Come From?, Lewis Branscomb

Duke Law & Technology Review

On February 19, 2004, Dr. Lewis Branscomb gave the Meredith and Kip Frey Lecture in Intellectual Property at Duke Law School. In his speech, Dr. Branscomb discussed various models for turning basic scientific inventions into high-tech innovations and highlighted the roles that universities, private investors, and intellectual property law play in each model. Dr. Branscomb concluded that this intermediary process is the most important step in getting high-tech innovations to market.