Intellectual Property Law Commons^™

Global Use/Territorial Rights: Private International Law Questions Of The Global Information Infrastructure, Jane C. Ginsburg

Faculty Scholarship

In the private international law of intellectual property, and particularly of literary and artistic property, the basic principle is territoriality. Each country provides for its own regime of protection of works of authorship. The Berne Convention for the Protection and Literary and Artistic Works and the Universal Copyright Convention oblige their members to respect the rule of national treatment, that is, of non discrimination between domestic and foreign works from member countries. This rule reinforces the principle of territoriality, for it confirms the role of local copyright laws, by requiring that local law apply equally to the protection of local …

Domestic And International Copyright Issues Implicated In The Compilation Of A Multimedia Product, Jane C. Ginsburg

Faculty Scholarship

Suppose an entrepreneur wishes to create an interactive multimedia product on the theme of the Exploration of Space. The multimedia work would assemble components created specially for the product, and others drawn from preexisting works. The latter might include: Leonardo da Vinci drawings of aeronautical machines, archival photographs of early airplanes, excerpts from 19th and 20th century science-fiction novels, text and photos of newspaper accounts of space flights, NASA space maps, television news clips, excerpts of motion pictures and television series, and musical compositions and recordings. Elements specially created for the product might comprise the computer program users would employ …

Distinguishing Between Consensual And Nonconsensual Advantages Of Liability Rules, Ian Ayres, Eric Talley

Faculty Scholarship

Louis Kaplow and Steven Shavell's thoughtful reply to our recent article contains powerful insights about the relative efficiency of liability and property rules. While we are in agreement that liability rules can be more efficient than property rules when transaction costs are low, we disagree about the cause of this liability-rule advantage. Kaplow and Shaveli believe that liability rules hold only a nonconsensual advantage over property rules (i.e., liability rules tend to induce efficient nonconsensual takings). While granting this oftrecognized nonconsensual advantage, we contend that liability rules may also have a consensual advantage in low-transaction-cost settings (i.e., liability rules facilitate …

Assertive Modesty: An Economics Of Intangibles, Wendy J. Gordon

Faculty Scholarship

At the center of our Symposium stand two papers: "A Manifesto Concerning the Legal Protection of Computer Programs" (Manifesto) and "Legal Hybrids: Between the Patent and Copyright Paradigms" (Legal Hybrids). Both are stimulating. Both are lengthy. As a result, my primary role is that of a guide: this Comment will summarize the authors' proposals, analyze certain aspects in greater detail, and outline their explicit and implicit methodologies. Part I of the Comment describes the papers' positions and methodologies. Part II highlights some of the papers' many contributions to the literature, and offers some other evaluative observations.

Counter-Manifesto: Student-Edited Reviews And The Intellectual Properties Of Scholarship, Wendy J. Gordon

Faculty Scholarship

In the great scheme of things, how important are the problems with law reviews? Jim Lindgren's essay is a bit overheated, even for someone enamored f polemic as a literary form. But he does have a point: if law reviews are going to be published, the task should be done better than it is. That does not mean getting rid of student law reviews. Not even for Jim - but it does require patience and further inquiry into the nature of legal scholarship.

Surveying The Borders Of Copyright, Jane C. Ginsburg

Faculty Scholarship

The copyright course I teach at Columbia Law School begins with a survey of what copyright is not: it is not a patent, a trademark, or an object of physical property. Nor, as the course examines a little later on, does copyright protect every object of economic value whose worth might be further enhanced were it to be shielded from unauthorized copying. However, the frontiers between copyright and mere commercial value have never been well defined. Not only may the same item be simultaneously the object of copyright and of other legal rights, but copyright increasingly covers – or is …

Commentary: Authority Of The Commissioner Over The Board Of Patent Appeals And Interferences, R. Carl Moy

Faculty Scholarship

On August 3, 1992, the United States Patent and Trademark Office published a notice in the Federal Register requesting public comments on the PTO's appeal procedures. Taken in context, then, the notice can be fairly said to raise the issue whether, under the existing statute, the Board is subservient to the Commissioner. It also raises the broader question of whether such a subservient arrangement is desirable or, alternatively, whether the statute should be modified if necessary to give the Board decisional independence from the Commissioner. This Commentary is directed primarily to this latter point. In summary, it concludes that the …

The Unnatural Expansion Of Trademark Rights: Is A Federal Dilution Statute Necessary?, Kenneth L. Port

Faculty Scholarship

This article is a systematic review of proposed section 43(c ). Proposed section 43(c ) would create a federal cause of action for trademark dilution and would grossly expand trademark rights. The article reviews both the practical implications and theoretical underpinnings of the dilution concept. Part II describes the basic origins and history of the dilution debate. Part IV(A) presents the practical problems that proposed section 43(c ) raises. Part IV(B) critiques some of the more popular theoretical justifications that are typically used to support granting intellectual property rights and concludes that no satisfactory theoretical justification exists to warrant an …

Virtual Reality, Appropriation, And Property Rights In Art: A Roundtable Discussion: April 12, 1994, Beryl Jones-Woodin

Faculty Scholarship

No abstract provided.

Virtual Reality, Appropriation, And Property Rights In Art: A Roundtable Discussion, Wendy J. Gordon

Faculty Scholarship

Virtual reality is user-interfacing technology that tracks the kinetic movement, changes, and reactions in the body of an operator using devices that provide comprehensive and exclusive sensory excitation (in the sense that perceptual input from outside the system is excluded as much as possible). The technology simultaneously allows information and commands to be input back into the system as effortlessly as possible. Virtual reality can be thought of as total sensory immersion in the input and output of a computer system: everything one sees, feels, and hears comes from the computer, and everything the user does goes back in. It's …

Four Reasons And A Paradox: The Manifest Superiority Of Copyright Over Sui Generis Protection Of Computer Software, Jane C. Ginsburg

Faculty Scholarship

The "Manifesto Concerning the Legal Protection of Computer Programs" offers an extensive and challenging critique of current intellectual property protection of software. The authors argue strongly that the law should focus on the value of the know-how embodied in programs and the importance of protecting it, rather than on the particular means which might be used to appropriate it. The authors seek to compel reconceptualization of the place of computer programs, and of software authors' creativity, within the domain of intellectual property. However, their brief for change manifests several flaws. Paradoxically, it comes at once both too soon and too …

Product Definition, Product Information, And Market Power: Kodak In Perspective, Mark R. Patterson

Faculty Scholarship

In Eastman Kodak Co. v. Image Technical Services, Inc., product information, market costs, market information the United States Supreme Court held that market power sufficient to impose an illegal tying arrangement can, at least in theory, derive from buyers' uncertainty regarding a product's costs and quality. Although commentators disagree on the implications of the Kodak decision, all seem to agree that the opinion's emphasis on product information costs is a departure from previously accepted economic analysis of antitrust law. In this Article, Mark R. Patterson argues that the Kodak decision is, in fact, economically reasonable, incorporating into antitrust law previously …

The History Of The Patent Harmonization Treaty: Economic Self-Interest As An Influence, R. Carl Moy

Faculty Scholarship

How shall the United States decide whether to adopt the Patent Harmonization Treaty? What questions shall we ask? Whose answers shall we trust? What sources of information can provide us with the background needed for these inquiries? This article offers a framework in which to ask, and begin to answer, these questions. It focuses on the international community's past efforts to harmonize the law of patents. It asserts not only that history provides context, but also, that the same history yields lessons directly applicable to many of the treaty's basic issues. Section I discusses the immediate history of WIPO's efforts …

A Property Right In Self-Expression: Equality And Individualism In The Natural Law Of Intellectual Property, Wendy J. Gordon

Faculty Scholarship

This Article argues that a properly conceived natural-rights theory of intellectual property would provide significant protection for free speech interests. This is more than just an academic exercise. Judges have failed to use the First Amendment to provide extensive protection for free expression in intellectual property cases, in part because they mistakenly find a warrant for strong "authors' rights" in a philosophy of natural law. Natural rights theory, however, is necessarily concerned with the rights of the public as well as with those whose labors create intellectual products. When the limitations in natural law's premises are taken seriously, natural rights …

A Commentary On The Harmonization Of European Private Law, George A. Bermann

Faculty Scholarship

The idea behind bringing together these papers on harmonization in three such distinct fields as contract, copyright and telecommunications, and securities law must be that they may have something to tell us generally about the processes of harmonization in European private law. Each paper tells a story fascinating in its own right, but whether they in fact add up to something more, with implications for private law harmonization as a whole, is the question I naturally want to take up in this commentary.

Conflicts Of Copyright Ownership Between Authors And Owners Of Original Artworks: An Essay In Comparative And International Private Law, Jane C. Ginsburg

Faculty Scholarship

Most, if not all, copyright laws distinguish between ownership of the incorporeal copyright, and ownership of chattels. A generally-accepted corollary holds that alienation of the chattel that constitutes the material form of a copyrighted work does not carry the copyright with it. Applying this principle to works of the visual arts, it should be clear that sale of a painting, even if it is the only "copy" of a work, is not a transfer of the exclusive rights under copyright to reproduce the work or to create derivative works based on the painting. Similarly, ownership of the copyright confers no …

The Illegitimacy Of Trademark Incontestability, Kenneth L. Port

Faculty Scholarship

The concept of incontestability in American trademark law has caused great confusion ever since its adoption as part of United States trademark law in 1946. This Article is first a study of the rational basis for incontestability in American trademark law. The role of incontestability in the larger regime of American trademark law is established in order to understand incontestability as it fits within the history of the common law of trademarks. This is fundamental in order to understand the significance of the thesis that incontestability is illegitimate. Next, acquisition of incontestability is presented in order to show how simple …

"Arising Under" Jurisdiction And The Copyright Laws, Amy B. Cohen

Faculty Scholarship

Does a claim arise under the copyright laws when a critical allegation is that a party's use of a copyrighted work is unpermitted and infringing because such use was limited by the terms of a contract? The federal courts of appeals have confronted this question in a number of recent cases. Many have concluded that federal jurisdiction exists, reversing district court judgments of dismissal for lack of subject matter jurisdiction.

Despite these repeated attempts to resolve the matter, however, this question continues to confound the courts, which lack a clear approach to defining when a claim arises under the copyright …

Preface: Symposium On Intellectual Property Law Theory, Wendy J. Gordon

Faculty Scholarship

For primary contributors to this symposium we have sought out people whose thoughts on intellectual property are not well known to readers of the standard law reviews. We are very gratified by the results. Of our three philosopher contributors, none has published much explicitly discussing intellectual property before, though the work of each of them is highly relevant to the topic; our economist, who publishes most often in philosophic, economic and communications journals, here brings his various perspectives to bear; our practitioner contributor proves that the most esoteric of academic topics - postmodern literary theory - has relevance to everyday …

Copyright Without Walls?: Speculations On Literary Property In The Library Of The Future, Jane C. Ginsburg

Faculty Scholarship

This essay considers the application and adaptation of copyright law to the library of the future. In this "library without walls," works will be accessible by computer to users near and far. While a printed book usually is read by only one person at a time, that same book in digital format may be simultaneously consulted by as many users as have PCs linked by modem to the library. Where collecting quotations from printed sources today requires transcription or photocopying, in the library of the future it may be possible to download and print out excerpts, or even the entire …

Beyond The Historical Lines Of Demarcation: Competition Law, Intellectual Property Rights, And International Trade After The Gatt's Uruguay Round, J. H. Reichman

Faculty Scholarship

No abstract provided.

Reality As Artifact: From Feist To Fair Use, Wendy J. Gordon

Faculty Scholarship

Lawyers more than most people should be aware that what language calls "facts" are not necessarily equivalent to things that exist in the world. After all, when in ordinary conversation someone says "it's a fact that X happened," the speaker usually means, "I believe the thing I describe has happened in the world." But when a litigator presents something as a "fact," she often means only that a good faith argument can be made on behalf of its existence. Two sets of factfinders can look at the same event and come to diametrically opposed conclusions-each of which is binding, but …

Asymmetric Market Failure And Prisoner's Dilemma In Intellectual Property, Wendy J. Gordon

Faculty Scholarship

When competitors engage in unrestrained copying of each others' intangible products, the structure can resemble a prisoner's dilemma in which free choice leads to unnecessarily low individual payoffs and low social welfare. There are many ways to avoid these low payoffs, such as contract enforcement, direct regulation of copying behavior through IP, and direct government subsidies. All of these modes alter the payoff pattern away from prisoner's dilemma.

When should lawmakers place copyright law or other IP law among the prime options to consider?

Because copyright, patent, misappropriation and the like all work through private-property markets, one key is to …

On Owning Information: Intellectual Property And The Restitutionary Impulse, Wendy J. Gordon

Faculty Scholarship

Every day someone invests time, labor, or money in creating a valuable intangible. Someone collects information, creates an idea, designs a boat hull, writes a book, or comes up with a new way to market a product that someone else developed. Judicial treatment of these and other cognate occurrences has shifted dramatically in recent years.

Intellectual Property Protection Or Protectionism? Declaratory Judgment Use By Patent Owners Against Prospective Infringers, Lawrence M. Sung

Faculty Scholarship

No abstract provided.

Patent Harmonization, Protectionism And Legislation, R. Carl Moy

Faculty Scholarship

This essay raises questions about the Patent Harmonization Treaty. addressing the overall direction of harmonization in this country and the processes that are being applied to the harmonization effort. Section I of the essay compares the underlying goals of patent harmonization with those of the current United States patent system. The article contends that the legal rules relating to patents in this country evidence a specific intent to promote domestic industry. The aims of harmonization, in contrast, are fundamentally different. To be valid, then, patent harmonization may require a basic shift in the social consensus in this country concerning the …

The Effect Of New Rule 56 On The Law Of Inequitable Conduct, R. Carl Moy

Faculty Scholarship

This article discusses Rule 56 of the Patent and Trademark Office. Part II discusses changes from the old to the new Rule 56, and examines the former’s relationship to the law of inequitable conduct. Part III elaborates on the current status of the PTO’s rulemaking efforts, and Part IV is focused on the new Rule under the APA. Parts V and VI are about new Rule 56 as a hortatory statement and common-law jurisprudential limitations, respectively. The author ultimately concludes that the PTO could have chosen to approach the Federal Circuit as an amicus without a prior rulemaking proceeding. That …

Reproduction Of Protected Works For University Research Or Teaching, Jane C. Ginsburg

Faculty Scholarship

The new means of reproduction for teaching and research – photocopying, downloading, optical scanning – present special challenges to intellectual property teachers. As researchers and educators, we may rejoice at the vastly enhanced access these technologies afford to an enormous, and ever-growing, diversity of materials. The convenience of the photocopier is well-known. Digital media will accelerate production and dissemination of copies. Not only will computers, scanners and facsimile machines make it easier and faster to copy, but they will facilitate the dispersal of copies to all points of the globe.

As scholars of intellectual property, we may be concerned about …

Computer Programs In Europe: A Comparative Analysis Of The 1991 Ec Software Directive, Jerome Huet, Jane C. Ginsburg

Faculty Scholarship

Long awaited – if not feared – in the computer industry, where its elaboration had evoked heated debate, the European Council Directive of May 14, 1991 on the Legal Protection of Computer Programs (the "Directive" or "Software Directive")has imposed common principles of copyright protection on the twelve Member States of the European Community (the "EC", the "Community"). As it declares in its preamble, the Directive responds to the need to ensure the proper functioning of a single marketand, to that end, to eliminate man), of the current differences among the Member States' legal systems.

In the domain of European copyright …

Judicial Deference To The Pto's Interpretations Of The Patent Law, R. Carl Moy

Faculty Scholarship

This article attempts to provide a basis upon which to preserve the Federal Circuit's current lawmaking primacy. Given the large body of preexisting literature on Chevron, USA, Inc v. Natural Resources Defense Council, it does not address whether Chevron allocates power between agencies and the courts optimally. Rather, the article examines how the PTO's statutory interpretations should be reviewed under Chevron. In Section I, the article places the examination in context by describing the Chevron decision and its general implications. Section II of the article examines how Chevron should be applied specifically in the context of reviewing statutory interpretations of …