Intellectual Property Law Commons^™

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

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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.

How Do The Social Benefits And Costs Of The Patent System Stack Up In Pharmaceuticals?, Daniel J. Gifford

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This paper explores the workings of the patent system in the context of the generation of new pharmaceutical products. First it identifies the relevant characteristics of the patent system and its relation to the market. The paper concedes that, in general, the patent system is probably the best way of generating new technology, in substantial part because that system uses the market to provide both incentives and rewards. The paper also identifies downsides of this patent/market system: deadweight loss and the unresponsiveness of that patent/market system to the needs of the poor. The paper then explores the social costs and …

Are You Experienced?: Examining The Need For Specialized Ethics Rules In Patent Litigation, Benjamin J. Sodey

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Any attorney licensed to practice before a federal district court, regardless or his or her area of specialization, may file a patent infringement suit on behalf of a client in that court. The possibility exists, therefore, for an attorney having little or no intellectual property experience to represent clients in complex patent litigation matters. Due to this, infringement defendants and their counsel may find themselves on the receiving end of a dubious patent claim brought by attorneys lacking patent law experience. This article discusses whether the existing rules governing attorney conduct, such as professional responsibility, procedural, or statutory rules, are …

The Democratic Public Domain: Reconnecting The Modern First Amendment And The Original Progress Clause (A.K.A. Copyright And Patent Clause), Malla Pollack

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If the Progress Clause, a.k.a. the Patent and Copyright Clause, of the U.S. Constitution had been construed when its original meaning was still obvious, United States law would be far different. In this area at least, the Drafters’ Constitution was much less aristocratic than the modern (mis)reading. The original meaning of the Progress Clause, furthermore, should have stimulated a more communitarian First Amendment, the type of First Amendment currently being suggested by leading First Amendment scholars such as Jack Balkin.

Who Owns The 'First Rough Draft Of History'? Reconsidering Copyright In News, Eric B. Easton

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Who Owns the ‘First Rough Draft of History’? suggests the withdrawal of copyright protection from hard-news journalism as a mechanism for “rescuing” the news from the inexorable downward spiral in quality and diversity caused by excessive media concentration. Although copyright represents just one of the factors contributing to the “commodification” of news today, it is a significant factor, and one with a long, unsavory relationship with censorship and monopoly.

The article asserts that newspapers’ quest for copyright protection was an early step onto a slippery slope toward a property-based, rather than service-based ethos, and that removing protection may mark a …

Invasion Of The Clones: Animal Cloning And The Potential Implications On The Future Of Human Cloning And Cloning Legislation In The United States, The United Kingdom, And Internationally, Adrienne N. Calhoun

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Cloning is an area of science that changes daily; with advances being made constantly. This technology has caused great controversy in the United States and across the world. The issue has raised religious, ethical, technical and legal concerns. This paper is broken into four parts in order to best address the complex area of cloning technology. Part one will be a review of the history of the science of cloning and the history of animal cloning. Part two will be a discussion of the risks and benefits of cloning. Part three will address ethical and religious concerns surrounding human cloning. …

Arthritic Flexibilities: Analysis Of Wto Action Regarding Paragraph 6 Of The Doha Declaration On The Trips Agreement And Public Health, Brook K. Baker

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This paper explores the tortured history of developing countries’ pursuit of access to affordable generic medicines that they are unable to produce efficiently on their own. Having lost rights to treat medicines as essential commodities and as generalized exceptions to patent protections in the WTO TRIPS Agreement, developing countries and public health activists temporarily reasserted the primacy of health over profits in the Doha Declaration on the TRIPS Agreement and Public Health in November of 2001. However, since most developing countries lack meaningful pharmaceutical capacity to manufacture medicines efficiently on their own, they needed flexibility to import medicines from countries …

Booze, Drugs, And Rock & Roll: Crime During The College Years, Paul S. Gutman

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In this Article, the author examines the predilection of college and university students towards certain types of illegal behaviors. Specifically, the Article considers the widespread instances of drug use, under-age alcohol use, and "file-sharing" using Napster and its progeny. The Article's main focus is on why such illegal behaviors are rampant among college students who might otherwise be

Beyond Dilution: Toward A Coherent Theory Of The Anti Free Rider Impulse In American Trademark Law, David J. Franklyn

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This article argues for a fundamental shift in the way famous trademarks are protected under American trademark law. Currently, famous marks are protected by dilution law, which purports to prevent a particular kind of harm (i.e., the gradual whittling away of the commercial magnetism of a famous mark). The article argues that this is the wrong focus of famous mark protection, because dilution is an illusory concept; it either does not exist, or it is so difficult to prove, that it is an ineffective and misleading doctrinal tool. The article contends that American trademark law should move from the harm-based …

Old Lyrics, Knock-Off Videos, And Copycat Comic Books: The Fourth Fair Use Factor In U.S. Copyright Law, Gregory M. Duhl

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No abstract provided.

The Several Lives Of Mickey Mouse: The Expanding Boundaries Of Intellectual Property Law, Ben Depoorter

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No abstract provided.

Technological Protection Measures In The United States, The European Union And Germany - How Much Fair Use Do We Need In The "Digital World"?, Wencke Baesler

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This article analyzes the different approaches of the United States and the European Union in the EU Copyright Directive towards the protection of technological protection measures against circumvention. The European and German laws have a radically different approach to fair use that heretofore has not been satisfactorily examined. It is a basic principle of copyright law in the European countries not to provide for a broad fair use exception, but to enumerate specific uses that are excluded from the copyright owner’s right to intervene. However, mostly payment of a reasonable compensation is required. This system is preserved in the recently …

Monopoly Power In The Electronic Information Industry: Why, And So What?, Curt A. Hessler

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This "law and economics" article diagnoses why monopoly power infects so many markets in the electronic media, communications, and information technology industries (collectively the "Industry"),and recommends changes to prevailing intellectual property and antitrust doctrines to remedy this problem.

The analysis focuses on a single "norm" -- the maximization of economic value, as defined by standard welfare economic theory. Identifying three distinct functions that operate throughout this otherwise diverse Industry -- authoring, publishing, and distribution -- the article notes that two economic peculiarities characterize most Industry markets: the technical feasibility of "non-rivalrous use" of digitized information products, and the frequent "creative …