Intellectual Property Law Commons^™

Briefing Note: 45th Meeting Of The Wipo Standing Committee On Copyright And Related Rights, Sean Flynn

Joint PIJIP/TLS Research Paper Series

This analysis provides a historical and legal overview of the principle agenda items to be discussed at the 45th meeting of the Standing Committee on Copyright and Related Rights.

Copyright And Covid, Sean Flynn

Joint PIJIP/TLS Research Paper Series

During the COVID-19 pandemic it became widely recognized that speedier access to patent rights should be enabled to speed global scale-up of vaccine production. This understanding was expressed in a proposal by India and South Africa that the World Trade Organization suspend multilateral intellectual property rules on COVID vaccines, treatment and containment. The original waiver proposal proposed a suspension of WTO rules on all forms of intellectual property needed for a broad range of COVID-19 response measures, including “vaccination,” “treatment,” and “containment.” The final “TRIPS Waiver,” however, was ultimately limited to a minor provision of TRIPS permitting greater use of …

The Right To Research As Guarantor For Sustainability, Innovation And Justice In Eu Copyright Law, Christophe Geiger, Bernd Justin Jütte

Joint PIJIP/TLS Research Paper Series

Research is essential for scientific, cultural, and social advancement and will be crucial for the economic and societal recovery in a post-pandemic world. Restrictions to access and use of information contained in copyright-protected expression however can constitute significant hindrances to conducting research efficiently, especially since modern research methods rely on accessing, storing and processing large amounts of digitized data. Over the last decade, copyright in the European Union (EU) has undergone a process of constitutionalization, which saw a growing importance of fundamental rights arguments in policy- and law-making, as well as in the jurisprudence of the Court of Justice of …

Algorithmic Financial Regulation: Limits Of Computing Complex Adaptive Systems, Shuping Li

American University Business Law Review

This article examines the potential of and limits to the use of machine learning for financial regulation. Ideally, if we could fully understand the financial system and agree on long- and short-term regulatory goals, we would be able to write code that carries out the computation that extracts proper representations from the data and makes correct regulatory decisions. We cannot do this yet because of limited sources of data, the bias brought by human beings and algorithmic models, and the difficulty of improving uninterpretable models. Furthermore, since law is a combination of merits and facts, there are difficulties in establishing …

Constructing Solutions: Addressing Liability And Ownership Risks Associated With Business Information Modeling, Connor Sheehy

American University Business Law Review

This Comment will first discuss the background of BIM, including its technological characteristics and implementation into a complex construction project, as well as the potential benefits that incentivize parties to utilize BIM in a project. Next, this Comment will discuss the legal risks and uncertainty associated with BIM, particularly regarding ownership and liability. Specifically, this Comment will focus on ownership of the intellectual property and designs within an overall model and will contrast liability in traditional construction projects with liability in a construction project utilizing BIM. Lastly, this Comment will discuss potential solutions to these risks and uncertainties. The analysis …

Defining "Use In Commerce": The Supreme Court's Evolving Extraterritorial Application Of The Lanham Act, Hannah Lief

American University Business Law Review

On June 29, 2023, the Supreme Court redefined the scope of the extraterritorial impact of the Trademark Act of 1946, also known as the Lanham Act (the “Act”). Overturning the ruling by the Tenth Circuit, the Court narrowed the focus of the Act to solely domestic uses in commerce. While the Court acknowledged that it had interpreted the statute in a manner that granted Congress expansive power over foreign conduct, it stated that the broad language of the Lanham Act does not indicate international application. By instituting newfound principles on congressional authority under the Lanham Act, U.S. trademark registrants can …

Seed Patents: Enabling Innovation Beyond Biological Deposits, Ellaina Sanders

American University Law Review

In J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., the Supreme Court held that new sexually reproducing plant varieties are patentable subject matter. This allowed breeders and seed companies to protect their intellectual property in new seeds by obtaining utility patents so long as they meet the other statutory requirements, such as enablement. Unlike other intellectual property protection for new plant varieties, utility patents require the patent disclosure to include enough information that a person of ordinary skill in the art could make and use the invention without undue experimentation. In In re Wands, the Federal Circuit …

Insuring Judgements And The Disclosure Gap, Jonathan Stroud, Sam Korte

American University Law Review

Judgment preservation insurance (“JPI”) is a newer, under-the-radar financial innovation upending the litigation landscape today. By insuring plaintiffs' trial victories on appeal, these policies neutralize the risk of reversal, but have been criticized for preventing settlement and extending disputes. Despite JPI's growing use, a regulatory blind spot allows these policies to remain concealed from the courts throughout the appellate process. We spotlight JPI, contrast it with widely used litigation insurance products, and propose appellate disclosure requirements in line with existing insurance disclosure rules. These simple changes would close the disclosure gap on appeal.

Artificial Intelligence Is Like A Perpetual Stew, Nathan Reitinger

American University Law Review

Artificial intelligence is inescapable. It is in our phones, fridges, and most of the businesses we engage with use it to “improve” their services. From deciding on what YouTube video to watch next to driving vehicles or firing weapons, artificial intelligence is a linchpin in our society. But what is artificial intelligence? And, more importantly, why does that matter? It matters because we are currently unprepared to deal with the paradigm-shifting legal issues brought about by artificial intelligence. And without this understanding, we are nearly certainly going to make mistakes. The bright side is that artificial intelligence is not complicated. …

Confusion Over Trademark Extraterritoriality ... And Beyond, Timothy R. Holbrook, Anshu Garg

American University Law Review

The Supreme Court afforded the Lanham Act extraterritorial reach over seventy years ago in Steele v. Bulova, but its recent extraterritoriality jurisprudence called that decision into question. This Article explains the history of trademark extraterritoriality and the splits that emerged among the circuit courts of appeals. It then canvases all of the Supreme Court’s recent decisions on the presumption against extraterritoriality and their effort to reinvigorate and standardize the law in that regard.

We then provide a detailed exploration of the Supreme Court’s decision in Abitron Austria GmbH v. Hetronic International, Inc. Next, we critique the decision and explore its …

Content Moderation On End-To-End Encrypted Systems: A Legal Analysis, Charles Duan, James Grimmelmann

Scholarly Articles in Law Reviews & Journals

Online messaging platforms like Signal and Google’s Messages increasingly use end-to-end encryption (E2EE), in which messages are encrypted on the sender’s device and decrypted on the recipient’s, so that no one else—not even the platform itself—can read them. Although E2EE protects privacy and advances human rights, the law enforcement community and others have criticized its growing use. In their view, E2EE prevents platforms and government authorities from responding to abuses and criminal activity, including child exploitation, malware, scams, and disinformation. At times, they have argued that E2EE is inherently incompatible with effective content moderation.

Computer science researchers have responded to …

Committed To Copyright's Constitutional Role, Michael W. Carroll

Scholarly Articles in Law Reviews & Journals

Who is Pam Samuelson? She is many things to many people: scholar, teacher, mentor, leader, advocate, and friend, to name a few. One could easily add “force of nature” to the list. This Article suggests adding the term “loyalist” to argue that an important through-line in Pam’s work has been an unwavering commitment to understanding and promoting copyright law’s ability to serve its purpose in our constitutional order.

Patient Access To At-Home Health Care Device Data Toward A Legal Framework, Charles Duan, Christopher J. Morten

Contributions to Books

No abstract provided.

Why The Supreme Court Rejected The Prospect Theory Of Copyright Scope, Michael W. Carroll

Scholarly Articles in Law Reviews & Journals

In Google LLC v. Oracle America, Inc. (“Google v. Oracle”), and again in Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith (“Warhol”), the parties and various amici presented the Court with a variety of arguments about the relationship between a copyright owner's right to make derivative works from a protected work and a user's right to make fair uses of that same work. At bottom, these arguments were about the proper, or even optimal, scope of copyright. This Essay argues that these arguments were instead grounded in a form of ““prospect theory” of copyright scope that would give …

Communication Decency Act And The Intellectual Property Exception, Casey Windsor

American University Business Law Review

As the internet proliferated in the 1990s, Congress became concerned with courts impeding the advancement of the internet and the distribution of obscene materials. Congress passed Section 230 of the Communication Decency Act (CDA), which was part of the Telecommunications Act of 1996. Section 230(c), known as the “Good Samaritan” provision, gave broad immunity to interactive computer services providers (ISPs) who monitor third-party content posted to their website.3 Section 230 created the regulatory foundation for modern day ISPs, including social media websites like Facebook.

Fairness And Fair Use In Generative Ai, Matthew Sag

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Copyright, Data Mining And Developing Models For South African Natural Language Processing, Chijioke Okorie

Joint PIJIP/TLS Research Paper Series

This paper sets out the issues of copyright ownership and risk of copyright infringement liability raised by data science research use of data held by public bodies (in particular, public service broadcasters) in South Africa. Considering both the fair dealing exception in South Africa’s Copyright Act of 1978 and the proposed fair use provision in its Copyright Amendment Bill B13F-2017, the paper discusses these issues elaborating on the reasons why data science researchers in public research institutions should not require a copyright licence or be considered to be infringing copyright when they use copyright-protected materials held by public bodies for …

The Conclusions Of Sccr 44, Sean Flynn

Joint PIJIP/TLS Research Paper Series

Last week, the World Intellectual Property Organization’s Standing Committee on Copyright and related Rights (SCCR) held its 44th meeting where substantial progress was made in protecting public interest issues within the two major standing items of the agenda -- on the Broadcast Treaty and on Limitations and Exceptions. This document summarizes the decisions made at the meeting as recorded in the Chair’s Summary.

Excerpts Of Sccr 44 Delegate Statements, Sean Flynn, Andres Izquierdo

Joint PIJIP/TLS Research Paper Series

The World Intellectual Property Organization’s Standing Committee on Copyright and Related Rights (SCCR) held its 44th meeting November 6-8, 2023. This post includes excerpts from the public statements made by country or regional delegations during the meeting.

The Constitutional Court Of Colombia Imposes Limits On The Use Of Internet Jammers During Social Protests, Carolina Botero, Lina Paola Velásquez

Joint PIJIP/TLS Research Paper Series

The Constitutional Court of Colombia has issued an important ruling regarding the use of the Internet as the main tool to guarantee the fundamental rights to freedom of speech and access to information during social protests. This ruling marks an important precedent in the matter because it imposed new obligations on the State and the government to guarantee the "maximum level of information". Likewise, the Court ordered the regulation of the use of signal jammers during social protests. This article will analyze the ruling and its effects in Colombia.

Copyright And Generative Ai: Insights From The Project On The Right To Research, Sean M. Fiil-Flynn

Joint PIJIP/TLS Research Paper Series

With the widespread launch of “generative AI” technology capable of creating music, art and text that could potentially substitute for the work of human creators, policy makers around the world are highly focused on how and whether copyright law should change in response. This paper summarizes results from studies that have been commissioned as part of the Project on the Right to Research in International Copyright coordinated by American University’s Program on Information Justice and Intellectual Property. That project focuses on uses of copyrighted works in text and data mining technology by scientific researchers. The same text and data mining …

Developing A Human Right To Research In International Law, Sanya Samtani

Joint PIJIP/TLS Research Paper Series

The covid-19 pandemic has highlighted issues concerning equitable access to and participation in research. But research has always been indispensable to human development. To what extent does international law guarantee access to research as well as the practice of researching? Drawing on the social anthropology definition of research as the pursuit of that which is not yet known, this paper locates a novel human right to research within the core international human rights covenants. The paper sets out the scope and content of the right and the nature and content of State obligations flowing from it. It concludes by outlining …

Mpp Covid-19 Antiviral Medicines Licenses – Licensed Territories, Supply Options For Excluded Territories, And Supply Barriers Arising From Trade-Secret Transfer, Brook K. Baker

Joint PIJIP/TLS Research Paper Series

This is a paper that analyzes Medicine Patent Pool licenses for three COVID-19 antivirals, including licensed territories, patent landscapes, supply options, regulatory status, and supply barriers arising from licensee acceptance of trade-secret information from the originator licensor. It concludes that at present there is no existing WHO prequalified licensee that can supply nirmatrelvir + ritonavir outside the Pfizer licensed territory, whereas there are potential molnupiravir licensees that can supply outside licensed territories where there is no blocking patent exists or a compulsory license has been issued in the country of import or use. The paper concludes with an assessment that …

Simplifying The Wipo Broadcasting Treaty: Proposed Amendments To The Third Revised Draft, Bernt Hugenholtz

Joint PIJIP/TLS Research Paper Series

In preparation of the 44^th meeting of the SCCR a Third Revised Draft Text for the WIPO Broadcasting Organizations Treaty was prepared by the SCCR Acting Chair. The current (third) draft contains mostly minor modifications as compared to the previous draft. The previous (second) revised draft was critically examined by the author of this document. The present document builds on the Comments by proposing amendments that transform the main points of criticism and suggestions for improvement into possible treaty language. Whereas – following the 2007 General Assembly decision – there is consensus within the SCCR that the Broadcasting Treaty …

Comments On The September 6, 2023 Draft Of A Wipo Broadcasting Treaty, The Definitions, Scope Of Application, National Treatment And Formalities, James P. Love

Joint PIJIP/TLS Research Paper Series

The World Intellectual Property Organization (WIPO) is evaluating a proposal for a new treaty that provides rights to broadcasting organizations. The negotiations began in 1997 and are currently taking place in the Standing Committee on Copyright and Related Rights (SCCR). On September 6, 2023, the WIPO Secretariat published a revised draft text prepared by the SCCR Chair, SCCR Vice-Chairs and facilitators. This article looks at certain elements of the draft concerning the definitions, scope of application, national treatment and formalities. Objections to the text focus on several draft definitions and the scope of application on the grounds that (1) very …

Walking The Talk: An Exploration Of Pathways In Implementation Of The 2013 Marrakesh Treaty - A Case Study Of Uganda, Anthony C.K. Kakooza

Joint PIJIP/TLS Research Paper Series

The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, is a WIPO administered treaty on copyright that was adopted in Marrakesh, Morocco, on 27^thJune 2013. The year 2023 therefore marks 10 years since its adoption. It is therefore an ideal time to do some stock taking as to how effective the treaty has been, thus far, in creating avenues through which blind or visually impaired persons can have easier access to published works.

This article looks at the implementation of the Marrakesh Treaty specifically in Uganda where …

Repair As Research: How Copyright Impedes Learning About Devices, Anthony D. Rosborough, Aaron Perzanowski

Joint PIJIP/TLS Research Paper Series

Widespread computerization and ubiquitous smart devices have enabled software-based copyright governance to reach into new domains. Beyond their instrumental utility, these devices are also containers of vast amounts of information in the form of software and technical know-how. Through copyright and anti-circumvention rules, however, this information can be cordoned off and confined to exclusive distribution channels. This can have a significant impact on research. While copyright law traditionally conceives research as the use of expressive works within institutional settings, this paper proposes a broader conceptualization that includes device research, including informal inquiries and DIY activities. Whether for the purposes of …

Prioritizing Regional Wildlife Conservation By Rejuvenating The Western Hemisphere Convention On Nature Protection, Shade Streeter, David Hunter, William Snape Iii

Sustainable Development Law & Policy

Last year, parties to the Convention on Biological Diversity (“CBD”), representing nearly every nation, signed a milestone agreement committing, among other things, to conserve thirty percent of Earth’s lands and oceans to stave off the rapid diminution of the planet’s biodiversity. Implementing these global commitments will require not only strong domestic measures, but also enhanced regional cooperation targeting the conservation of the region’s migratory wildlife and shared resources. Although the United States is the sole major holdout from the CBD, it can still reassert its leadership in regional wildlife conservation by rejuvenating the Convention on Nature Protection and Wildlife Preservation …

Unclos, Undrip & Tartupaluk: The Grim Tale Of Hans Isle And Graense, Christopher Mark Macneill

Sustainable Development Law & Policy

“Inuit have lived in the Arctic from time immemorial.” The Arctic, in the face of climate change, has become a hot spot for exploration, resource extraction, and increased shipping and scientific activity. “[The] Inuit . . . have had a common and shared use of the sea area and the adjacent coasts” among their own communities, and contemporaneously with the world. This vast circumpolar Inuit Arctic region includes land, sea, and ice stretching from eastern Russia (Chukotka region) across the Berring Strait, to Alaska, the Canadian Arctic, and Greenland, representing an Inuit homeland known as Nunaat. Hans Isle, a small …

The Great Climate Migration: A Critique Of Global Legal Standards Of Climate-Change Caused Harm, Mariah Stephens

Sustainable Development Law & Policy

Approximately 2.4 billion people, or about forty percent of the global population, live within sixty miles (one hundred kilometers) of a coastline. The United Nations (“U.N.”) determined that “a sea level rise of half a meter could displace 1.2 million people from low-lying islands in the Caribbean Sea and the Indian and Pacific Oceans, with that number almost doubling if the sea level rises by two metres.” The U.N. also reports that “sudden weather-related hazards” have internally displaced an annual average of 21.5 million people since 2008. Within the next few decades, this number is likely to continue to increase. …