Intellectual Property Law Commons^™

Banning Bans On New Reproductive And Novel Genetic Technologies, Matthew Herder

Canadian Journal of Law and Technology

Commentators argue that statutory prohibitions with the force of the criminal law should not be used to regulate new reproductive technologies (NRTs) and novel genetic technologies (NGTs). Bill C-13, the Assisted Human Reproduction Act, however, codifies 10 criminal bans. This paper considers the merits of the various arguments levied against Bill C-13, and the corollary claim that only a "non-prohibitive" model of legislation befits NRTs and NGTs. Three types of arguments are used to critique criminal bans: (1) "Structural" arguments hinge on the constraints of the Canadian legal system - legislation complete with prohibitions runs afoul of the Constitution Act …

Anonymity And The Supreme Court's Model Of Expression: How Should Anonymity Be Analysed Under Section 2(B) Of The Charter?, Peter Carmichael Keen

Canadian Journal of Law and Technology

The first part of this article will discuss what anonymity is, and the costs and benefits that anonymity confers on expressive activity. I will demonstrate that anonymity is a double-edged sword in that it can both promote and harm free expression. In the second part, I will suggest that there is no doubt that anonymity can be protected under section 2(b) of the Charter. When I first began this article, I intended to examine ‘‘whether’’ anonymity can be constitutionally protected under section 2(b). As my research progressed, I quickly realised that I was asking the wrong question. I discovered that …

Student Protector, Internet Provider, Or Contractual Party? An Examination Of The Legal Relationship Between A University And Its Students, Anna Christine Milot

Canadian Journal of Law and Technology

The legal relationship between a university and its students is becoming increasingly complex as the use of technology spreads. Accordingly, it is important to define a university’s responsibilities and legal boundaries in order to understand the liability universities can potentially incur when dealing with students. Each Canadian university is unique in its founding and enacting legislation, as will be discussed further later. The individuality of Canada’s universities means that the questions raised in this paper cannot be given answers that can necessarily be generalized across universities. The approach to analysis in this paper, however, is applicable to any of the …

Technology And International Trade: Wille The Real Transformer Please Stand Up?, Todd Weiler

Canadian Journal of Law and Technology

The primary driver of change in Canada’s cultural sector has not been some kind of contrived, neo- liberal plot imposed upon an unsuspecting public with the promise of ‘‘jobs, jobs, jobs.’’ Rather, it has been technology. The role for liberalised trade and investment treaties comes only in the form of a conditioning force, limiting the panoply of choices available to govern- mental officials who want to respond to the changes being wrought by technological advances.

This paper begins with some brief definitions, moving next to an elaboration of its thesis, and finally explaining the application of this thesis to some …

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

ExpressO

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 …

Patent Quality Improvement: Hearing Before The H. Comm. On The Judiciary, 108th Cong., July 24, 2003 (Statement Of John R. Thomas, Prof Of Law, Geo. U. L. Center), John R. Thomas

Testimony Before Congress

No abstract provided.

Trademarks Under The North American Free Trade Agreement (Nafta) With References To The New Trademark Law Of Spain, Effective July 31, 2002, And The Current Mexican Law, Roberto Rosas

Faculty Articles

A trademark is any distinctive sign indicating that certain products or services have been manufactured or rendered by a specific person or company. This concept is currently recognized worldwide; however, the origin of trademarks dates back to antiquity when artisans placed their signatures or “marks” on their products containing an artistic or utilitarian element. Through time, these marks have evolved to such an extent that today, a reliable and efficient system for their registration and protection has been established. Besides protecting owners of trademarks, this system also helps consumers identify and purchase goods or services, which, because of the essence …

Introduction, Peter K. Yu

Cardozo Journal of International and Comparative Law

The introduction explores the challenges of protecting traditional knowledge, folklore, and indigenous practices within the global intellectual property framework. It argues that the success of such protection depends on selecting the appropriate international forum for negotiations, fostering a nonzero-sum mindset among negotiators, addressing cognitive barriers, and ensuring the active participation of indigenous communities. The introduction emphasizes the need for a balanced approach that considers the diverse interests of various stakeholders, including developed and developing countries, indigenous peoples, and international organizations.

Re-Treating Intellectual Property? The Wai 262 Proceeding And The Heuristics Of Intellectual Property Law, Graeme W. Austin

Cardozo Journal of International and Comparative Law

The article explores the WAI 262 proceeding, a legal challenge by Maori tribes alleging breaches of the Treaty of Waitangi by New Zealand's intellectual property laws. It argues that the Crown's obligations under the Treaty require a re-evaluation of intellectual property frameworks to respect Maori self-determination and cultural rights.

Pharmacogenomics And Indigenous Peoples: Real Issues And Actors, Russel Lawrence Barsh

Cardozo Journal of International and Comparative Law

The article critically examines the ethical and scientific implications of genetic diversity research, particularly focusing on the Human Genome Diversity Project (HGDP). It highlights the tension between advancing scientific knowledge and addressing the ethical concerns of sampling vulnerable populations, such as indigenous and isolated communities. While the research aims to study genetic variation for medical and historical insights, it raises significant issues regarding informed consent, group rights, and the potential exploitation of these populations. The article emphasizes the need for balanced approaches that respect both individual and collective rights while ensuring equitable benefits from genetic research.

Spiritual But Not Intellectual? The Protection Of Sacred Intangible Traditional Knowledge, Daniel J. Gervais

Cardozo Journal of International and Comparative Law

The article examines the legal protection of sacred intangible traditional knowledge (TK), arguing that current intellectual property (IP) frameworks fail to adequately address the unique spiritual and cultural significance of such knowledge. It advocates for the recognition of collective or communal ownership of sacred TK, proposing adaptations to IP law to better respect and protect the rights of indigenous peoples. The analysis emphasizes the need for legal reforms that balance cultural preservation with the limitations of existing IP systems.

The Rhetoric Of Biopiracy, Paul J. Heald

Cardozo Journal of International and Comparative Law

The article critiques the rhetorical strategy of advocates for long-term occupant communities (LTOCs) seeking sui generis intellectual property rights to combat biopiracy. While their goals are admirable, the approach is ineffective due to widespread skepticism towards expanding intellectual property rights. The author argues that market-based solutions and alliances with corporations could better preserve biodiversity and compensate communities.

Ethnopharmacology, Patents And The Politics Of Plants' Genetic Resources, Remigius N. Nwabueze

Cardozo Journal of International and Comparative Law

The article critiques the exploitation of the South's biodiversity and genetic resources by the North, driven by self-interest and pharmaceutical needs, while highlighting the inequities perpetuated by international frameworks like TRIPS and the CBD. It argues that current legal systems, rooted in Western intellectual property principles, fail to protect indigenous knowledge and traditional practices adequately. The analysis proposes alternative approaches, such as compensation regimes and collective rights organizations, to address these disparities and ensure fair benefit-sharing.

Looking Beyond Intellectual Property In Resolving Protection Of The Intangible Cultural Heritage Of Indigenous Peoples, Robert K. Paterson, Dennis S. Karjala

Cardozo Journal of International and Comparative Law

The article examines the challenges indigenous peoples face in protecting their intangible cultural property, such as songs, legends, and ceremonies, under existing intellectual property (IP) and legal regimes. It argues that while indigenous claims for protection are legitimate, recognizing new IP rights may not be necessary or appropriate. Instead, the authors propose that existing legal frameworks, such as contract law, privacy, trade secret, and trademark law, could provide more effective and balanced solutions. They advocate for a nuanced approach that respects indigenous cultural heritage while maintaining compatibility with public domain interests and free expression.

Formulating An International Legal Protection For Genetic Resources, Traditional Knowledge And Folklore: Challenges For The Intellectual Property System, Weerawit Weeraworawit

Cardozo Journal of International and Comparative Law

The article argues that the current international intellectual property system, established by agreements such as the Paris Convention, Berne Convention, and TRIPS, is inadequate to address the protection of genetic resources, traditional knowledge, and folklore. These emerging global issues require a new international legal framework that balances the rights of communities with the demands of innovation and trade. The article emphasizes the need for a comprehensive and equitable regime, possibly through a sui generis system or modifications to existing IP laws, to address challenges such as biopiracy, benefit sharing, and communal rights.

Traditional Medical Knowledge, Intellectual Property Rights & Benefit Sharing, Gerard Bodeker

Cardozo Journal of International and Comparative Law

The article argues that there is a significant conflict between the exploitation of traditional medical knowledge (TMK) by commercial entities and the efforts of indigenous communities to protect their knowledge. This conflict stems from the clash between the intellectual property (IP) system, which often favors corporate interests, and the rights of indigenous peoples to their traditional knowledge. The article highlights the need for equitable legal frameworks to address issues of ownership, benefit sharing, and prior informed consent, particularly in the context of international agreements like TRIPS and the CBD.

Some Realism About Indigenism, Michael H. Davis

Cardozo Journal of International and Comparative Law

The article argues that the debate over using intellectual property (IP) rights to protect indigenous information is misguided. It posits that the core issue is not legal but economic—specifically, the poverty of indigenous communities. The author contends that IP regimes, particularly the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), exacerbate inequality and are inadequate for addressing the unique concerns of indigenism, which are rooted in economic disparities rather than legal frameworks.

Owning Enlightenment: Proprietary Spirituality In The "New Age" Marketplace, Walter A. Effross

Buffalo Law Review

No abstract provided.

Traditional Knowledge, Intellectual Property, And Indigenous Culture: An Introduction, Peter K. Yu

Faculty Scholarship

Human communities have always generated, refined and passed on knowledge from generation to generation. Such "traditional" knowledge" [sic] is often an important part of their cultural identities. Traditional knowledge has played, and still plays, a vital role in the daily lives of the vast majority of people. Traditional knowledge is essential to the food security and health of millions of people in the developing world. In many countries, traditional medicines provide the only affordable treatment available to poor people. In developing countries, up to 80% of the population depend on traditional medicines to help meet their healthcare needs. In addition, …

Spiritual But Not Intellectual? The Protection Of Sacred Intangible Traditional Knowledge, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The use of sacred aboriginal art is nothing new. It is fairly common to see dream catchers hanging from rear view mirrors in cars. In Australia, sacred aboriginal designs are often found on tea towels, rugs and restaurant placemats. In the United States, people routinely Commercialize Navajo rugs containing both sacred and profane designs with no connection to the Navajo nation. Millions of dollars of Indian crafts imported from Asia are sold in the United States each year. Another example is the taking of sacred Ami chants by the German rock group Enigma for its song Return to Innocence. Can …

Fragmented Copyright, Fragmented Management: Proposals To Defrag Copyright Management, Daniel J. Gervais, Alana Maurushat

Vanderbilt Law School Faculty Publications

The collective management of copyright in Canada was conceived as a solution to alleviate the problem of inefficiency of individual rights management. Creators could not license, collect and enforce copyright efficiently on an individual basis. Requiring users to obtain permission from individual copyright holders for the use of a work was equally inefficient. Collectives, therefore, emerged to facilitate the clearance of rights between creators and users. Even with the facilitation of collectives in the process, clearing rights remains an inherently difficult and convoluted process. This is especially so in the age of the Internet where clearing rights for multimedia products …

Weeds, Seeds & Deeds: Recent Skirmishes In The Seed Wars, Keith Aoki

Cardozo Journal of International and Comparative Law

The article examines the commodification of seed germplasm, tracing its evolution through technological advancements and legal frameworks that have transformed seeds from a shared resource into a corporate-controlled commodity. It critiques how intellectual property laws, particularly patent protections, have prioritized corporate interests over traditional farming practices and biodiversity. The analysis highlights the tension between private property rights and the commons, advocating for a balanced approach that considers both intellectual property and the preservation of genetic diversity.

Reflections On The Traditional Knowledge Debate, Shubha Ghosh

Cardozo Journal of International and Comparative Law

The article argues that the traditional knowledge debate is a continuation of historical tensions between the Global North and South, centered on ownership and control of resources. These tensions manifest in intellectual property (IP) law, particularly in the clash between market culture and communitarian, gift-based cultures. The author emphasizes that while IP law is often seen as a tool for commodification, it can also serve strategic purposes, such as fostering domestic industry and promoting sovereignty, especially through the flexible framework provided by the TRIPS Agreement.

Intellectual Property, Genetic Resources And Traditional Knowledge Protection: Thinking Globally, Acting Locally, Charles R. Mcmanis

Cardozo Journal of International and Comparative Law

The article explores the tension between global intellectual property rights and the preservation of biodiversity and traditional knowledge, highlighting the conflict between developed and developing nations. It discusses efforts to balance these interests through international agreements like TRIPS and CBD, and presents the ICBG-Peru project as a successful local model for fair benefit-sharing and traditional knowledge protection.

The Protection Of Folklore, Silke Von Lewinski

Cardozo Journal of International and Comparative Law

The article examines the challenges of protecting folklore under existing intellectual property laws, highlighting the limitations of current legal frameworks and advocating for a new international system that balances the rights of indigenous communities with the demands of commercial exploitation. It emphasizes the need for a comprehensive approach that considers the cultural, financial, and integrity interests of indigenous peoples, while addressing the historical failures of international efforts to establish effective protection for folklore.

Random Walks, Non-Cooperation Games, And The Complex Mathematics Of Patent Pricing, F. Russell Denton, Paul J. Heald

Scholarly Works

Current patent valuation methods have been described charitably as “inappropriate,” “crude,” “inherently unreliable,” and a “guesstimate.” This article provides a more rational and systematic tool than any we have found in the existing literature or relevant case law. We believe our approach to patent valuation will be useful in improving investment decisions, in facilitating licensing negotiations, and in reducing error costs in litigation. An improved valuation metric also promises to make patents easier to take as collateral and to reduce the amount of “Blue Sky” in mergers and acquisitions involving high tech corporations. To the extent that valuation problems have …

I Didn't Take The Road Less Traveled, And What A Long, Strange Trip It's Been, Brian A. Glassman

Journal of Legal Education

No abstract provided.

Eugene Volokh Replies, Eugene Volokh

Journal of Legal Education

No abstract provided.

Ub Viewpoint – Aol/Microsoft Settlement Could Harm Consumers, Robert H. Lande

All Faculty Scholarship

No abstract provided.

Filled Milk, Footnote Four & The First Amendment: An Analysis Of The Preferred Position Of Speech After The Carolene Products Decision, Elizabeth Wallmeyer

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.