Intellectual Property Law Commons^™

The Place Of The User In Copyright Law, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Copyright doctrine . . . is characterized by the absence of the user. As copyright moves into the digital age, this absence has begun to matter profoundly. As I will show, the absence of the user has consequences that reach far beyond debates about the legality of private copying, or about the proper scope of user-oriented exemptions such as the fair use and first sale doctrines. The user's absence produces a domino effect that ripples through the structure of copyright law, shaping both its unquestioned rules and its thorniest dilemmas. The resulting imbalance - empty space where one cornerstone of …

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

Vanderbilt Law School Faculty Publications

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.

Disclosure As A Strategy In The Patent Race, Scott Baker, Claudio Mezzetti

Scholarship@WashULaw

Research firms disclose a surprisingly large amount of information to the patent office through “targeted” disclosures, that is, disclosures intended to make the patent office aware of potentially patentable information. Conventional wisdom holds that these disclosures are made for defensive purposes; the disclosing firm does not itself plan to pursue patents related to the disclosed information, so the firm discloses to create prior art that might stop rivals from patenting. But firms have an incentive to disclose even if they intend to pursue patent protection. The reason is that, by making it more difficult to patent, disclosure extends the patent …

Indigenous Peoples And Intellectual Property, Stephen M. Mcjohn, Lorie Graham

Suffolk University Law School Faculty Works

This paper, following on Michael F. Brown's Who Owns Native Culture?, suggests that intellectual property law, negotiation, and human rights precepts can work together to address indigenous claims to heritage protection. Granting intellectual property rights in such spheres as traditional knowledge and folklore does not threaten the public domain in the same way that expansion of intellectual property rights in more commercial spheres does. It is not so much a question of the public domain versus corporate and indigenous interests, as it is a question of the impact corporate interests have had on the indigenous claims. Indeed indigenous peoples' claims …

An Idea Whose Time Has Come – But Where Will It Go, Jane C. Ginsburg

Faculty Scholarship

This Reply picks up where Professor Miller's bold proposal leaves off: with the private international law and international copyright implications of state common law protection for idea-submitters. We will first address the compatibility of the proposal with international copyright norms disqualifying ideas from copyright protection. We will then turn to the consequences of the proposal for a federal system. Professor Miller's article thoroughly examines one aspect of the federalism problem, that of federal copyright policy preemption of statebased idea protection. But in advocating a regime constricted to the fifty separate states, not all of whose courts choose to secure idea …

The Une Anticommons: Why The 1996 Telecom Reforms Blocked Innovation And Investment, Michael A. Heller

Faculty Scholarship

The United States is losing its competitive edge in telecommunications partly because of FCC mistakes in fragmenting property rights in, and in the regulatory oversight of local telephone facilities and services. As with postsocialist transition, reformers created a "tragedy of the anticommons" in which too many owners and regulators each can block the others' investments and all players forego innovation. By forcing existing companies to unbundle network elements (UNEs) and sell them too cheaply, the FCC has created an industry where the players cannibalize the legacy network, divert resources to regulatory arbitrage, and have little incentive for bold new investments.

Copyright Infringement In The Indian Film Industry, Rachana Desai

Vanderbilt Journal of Entertainment & Technology Law

This Note focuses on the largest of these industries: Bollywood, the center of Hindi language cinema. In recent years, nearly eight out of every ten Bollywood scripts have been inspired by one or more Hollywood films. Previously, this widespread problem was not visible to those outside of India. The emergence of the internet and better global communications, however, have made Westerners more aware of the cultural copy situation in India. In 2003, best-selling fiction writer Barbara Taylore-Bradford brought a copyright infringement suit against Sahara Television for allegedly making a television series out of her book "A Woman of Substance." After …

Why Is Betamax An Anachronism In The Digital Age?, Jiarui Liu

Vanderbilt Journal of Entertainment & Technology Law

This Article aims to examine whether, as some courts indicate, the Sony doctrine is largely irrelevant in cyberspace. If the answer is no, how should courts properly apply the Sony doctrine to protect copyright holders' legitimate interests and further the innovation and prosperity of Internet technologies? This Article argues that the Sony doctrine should be given the widest application possible and not be subject to any preconceived formula. In the digital age, the test of "capable of substantial noninfringing uses" is still well suited to advance the ultimate objective of copyright law contemplated by the Supreme Court as well as …

Digital Music Sampling And Copyright Law, Carlos Ruiz De La Torre

Vanderbilt Journal of Entertainment & Technology Law

Copyright law governing digital music sampling is faced with two competing interests: first, the owners of recording and composition copyrights need to be reasonably compensated when their creative works are reused by sampling artists, but secondly, sampling artists should have a reasonable degree of freedom to rework fragments of existing recordings at a reasonable cost. A system needs to balance these interests and reduce the degree of uncertainty that arises when the use of a sample infringes a copyright. This Article will discuss the current state of the law as it relates to digital sampling and will then articulate five …

Some Catching Up To Do, Kara M. Wolke

Vanderbilt Journal of Entertainment & Technology Law

The analysis begins with a discussion of the purposes behind the WPPT and the international recognition of a general sound recording performance right. Part I discusses Congress' partial implementation of the WPPT through the Digital Millennium Copyright Act of 1998 (DMCA) and the digital performance right. Part II explores the value that recognition of the full public performance right under the WPPT would create for the American music industry. Finally, Part III proposes a solution in the form of an amendment to the Copyright Act and the coordination of national and international performance rights organizations.

The Downhill Battle To Copyright Sonic Ideas In Bridgeport Music, Matthew S. Garnett

Vanderbilt Journal of Entertainment & Technology Law

This Note argues that the bright-line rule announced in Bridgeport Music should not apply where the disputed digital sample appropriates only the "sonic" ideas of the original work. The main thrust of this argument is that the Sixth Circuit's holding in Bridgeport Music is inapplicable where the disputed copying is a protected exercise of "fair use" reverse engineering; that is, where copying is necessary to appropriate the "sonic" ideas embodied in the sampled work.

Part II of this Note presents a brief history of digital sampling, including its application in the Hip-Hop musical genre. Part III presents a walkthrough of …

The Author's Name As A Trademark: A Perverse Perspective On The Moral Right Of "Paternity"?, Jane C. Ginsburg

Faculty Scholarship

The US. Supreme Court in its 2003 decision in Dastar v. Twentieth Century Fox, construing the Lanham Federal Trademarks Act, deprived authors of their principal legal means to enforce attribution rights in the US. I have elsewhere criticized the Dastar Court's analysis, and have urged amending the Copyright Act to provide express recognition of the attribution right. This time, however, I propose to reconsider the foundation for the attribution right; I draw on literary and historical sources to supplement legal arguments concerning the meaning of the author's name. I will suggest that, contrary to the usual characterization of this …

Legal Protection Of Technological Measures Protecting Works Of Authorship: International Obligations And The Us Experience, Jane C. Ginsburg

Faculty Scholarship

The ongoing transposition of the EU Information Society Directive's requirement that member States adopt of legal prohibitions of the circumvention of technological protections of works of authorship occasions this review of international obligations and their implementation in the US. This article addresses the scope of international obligations the WIPO Copyright Treaties impose on member States to protect against circumvention, as well as the US experience with the Digital Millennium Copyright Act's prohibitions on circumvention of access and copy controls. It examines the text of the statute, codified at sec. 1201 of the 1976 Copyright Act, the five years of judicial …

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 …

Policing The Border Between Trademarks And Free Speech: Protecting Unauthorized Trademark Use In Expressive Works, Pratheepan Gulasekaram

Publications

Abstract: Artists and other creators of expressive works often include trademarks and trademarked products as part of their works. They do so for a number of reasons, including lighthearted humor, critical cultural commentary, parody, or even simply to shock. In instances where such use is both unauthorized by and perceived as disparaging to the mark owner or the trademarked product, owners have attempted to sue under trademark law to enjoin the expressive use. This Article argues that, under a proper analysis of trademark law, precedent, and the free expression ideal enshrined in the First Amendment, mark owners should rarely, if …

Intellectualizing Property: The Tenuous Connections Between Land And Copyright, Stewart E. Sterk

Articles

Increased use of the intellectual property label to describe copyright and related areas of law has spawned analogies to the protections afforded real property. These analogies ignore significant differences between the foundations that undergird real and intellectual property rights. In particular, real property rights operate to avoid breaches of the peace and tragedies of the commons - problems that do not arise with intellectual works - while copyright and other intellectual property rights are designed to provide an incentive to create, an incentive irrelevant when land is at issue. These disparities in justification caution against routine importation of real property …

When Will We Have Cross-Border Licensing Of Copyright And Related Rights In Europe?, Lucie Guibault

Articles, Book Chapters, & Popular Press

In Europe, much has been written recently about the collective management of copyright and related rights. April 2004 saw the publication of the European Commission’s Communication to the Council and the European Parliament on the Management of Copyright and Related Rights in the Internal Market. This communication confirms the Commission’s intention to adopt, in the not too distant future, a directive on the governance of the societies for collective management of copyright and related rights (collecting societies) in Europe. In addition to describing the current situation in the area of collective management of copyright and related rights in the European …

Yours For Keeps: Mgm V. Grokster, Max Oppenheimer

All Faculty Scholarship

In MGM v. Grokster, now pending before the U.S. Supreme Court, all parties have made the assumption that most P2P file transfers infringe copyrights. Two theories contradict that assumption: a significant number of individuals who transfer files over P2P networks may have a license to do so, and the Copyright Act itself may exempt the transfer of certain categories of entertainment files over P2P networks from the definition of infringement.

A Brief History Of Bioperl, Colin Crossman, Arti K. Rai

Faculty Scholarship

Large-scale open-source projects face a litany of pitfalls and difficulties. Problems of contribution quality, credit for contributions, project coordination, funding, and mission-creep are ever-present. Of these, long-term funding and project coordination can interact to form a particularly difficult problem for open-source projects in an academic environment.

BioPerl was chosen as an example of a successful academic open-source project. Several of the roadblocks and hurdles encountered and overcome in the development of BioPerl are examined through the telling of the history of the project. Along the way, key points of open-source law are explained, such as license choice and copyright.

The …

Using Intellectual Property Rights To Preserve The Global Genetic Commons: The International Treaty On Plant Genetic Resources For Food & Agriculture, Laurence R. Helfer

Faculty Scholarship

Over the last twenty years, national governments, patent owners, farmers, plant breeders, researchers, and a diverse array of non-governmental organizations (NGOs) have engaged in a vigorous debate over how to conserve and utilize the world's plant genetic diversity. On one side of this debate are advocates of a pure global commons regime, which would allow researchers, breeders, and farmers free and unfettered access to all plant genetic resources (PGRs), including those held in international seed banks, in national collections, and in situ on public lands. On the other side are advocates of a private property approach, which seeks to encourage …

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

Faculty Scholarship

No abstract provided.

Using Liability Rules To Stimulate Local Innovation In Developing Countries: Application To Traditional Knowledge, Jerome H. Reichman, Tracey Lewis

Faculty Scholarship

When economists speak of an underlying legal structure that imposes an "absolute permission" requirement on access to, and use of, knowledge goods protected by intellectual property rights (IPRs), they typically have in mind the domestic patent and copyright laws. Under these and related intellectual property regimes, one cannot normally make use of a protected invention or creative work of authorship for specified purposes and for limited periods of time without prior authorization of the rights holder, typically in the form of a license.

When economists speak of liability rules, in contrast, they envision an underlying legal structure that permits third …

Comment: Copyright's Public-Private Distinction, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

I would like to focus my remarks on the question of user privacy. In her fascinating paper for this Symposium, Professor Litman expresses a guarded optimism that in its forthcoming decision in MGM v. Grokster, I the Court will retain the staple article of commerce doctrine that it first articulated in Sony. She opines, however, that the user privacy strand of the Sony decision is a lost cause. I don't believe that it's possible to retain the staple article of commerce doctrine while abandoning user privacy. At least in the realm of networked digital technologies, the two concepts are inextricably …

Laugh Track, Jay D. Wexler

Faculty Scholarship

The Supreme Court may have its own police force, its own museum curator, and even its own basketball court, but unlike the courts of yore it has no Jester. As a result, the responsibility of delivering humor within the hallowed halls of One First Street falls squarely on the backs of the nine Justices themselves. But which Justice provides the best comic entertainment for the court watchers, lawyers, and staff that make up the Court’s audience on any given argument day? Surely many believe that Justice Scalia, with his acerbic wit and quick tongue, has provided the most laughs from …

Copyright Norms And The Problem Of Private Censorship, Wendy J. Gordon

Faculty Scholarship

Copyright policy must resolve intelligently the tension between upstream and downstream creators, between incentives to create and incentives to use. Downstream at1thors who copy and transform others' images or words as an input to new creativity have. obvious free speech concerns. So do simple copiers in those many instances where even non-creative copying is essential for expressing one's ideas or allegiances.

Part of the tension is economic. Because virtually every author :needs access to predecessor texts, a legislature that increases copyright protection for ·today's creators simultaneously increases tomorrow's costs of creation ¹ or use. But the issue goes far beyond …