Intellectual Property Law Commons^™

A Theory Of Copyright Authorship, Christopher Buccafusco

Faculty Scholarship

The U.S. Constitution gives Congress the power to grant rights to “Authors” for their “Writings.” Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This article articulates and defends a theory of copyrightable authorship. It argues that authorship involves the intentional creation of mental effects in an audience. A writing, then, is any fixed medium capable of producing mental effects. According to this theory, copyright may attach to the original, fixed, and minimally creative form or manner …

The Moral Psychology Of Copyright Infringement, Christopher Buccafusco, David Fagundes

Faculty Scholarship

Numerous recent cases illustrate that copyright owners sue for infringement even when an unauthorized use of their work causes them no economic harm. This presents a puzzle from the perspective of copyright theory as well as a serious social problem, since infringement suits designed to remedy non-economic harms tend to stifle rather than encourage creative production. While much scholarship has critiqued copyright’s economic theory from the perspective of authors’ incentives to create, ours is the first to explore this issue from the perspective of owners’ motivations to sue for infringement. We turn to moral psychology, and in particular to moral …

Manufacturing Barriers To Biologics Competition And Innovation, W. Nicholson Price Ii, Arti K. Rai

Faculty Scholarship

As finding breakthrough small-molecule drugs gets harder, drug companies are increasingly turning to “large molecule” biologics. Although biologics represent many of the most promising new therapies for previously intractable diseases, they are extremely expensive. Moreover, the pathway for generic-type competition set up by Congress in 2010 is unlikely to yield significant cost savings.

In this Article, we provide a fresh diagnosis of, and prescription for, this major public policy problem. We argue that the key cause is pervasive trade secrecy in the complex area of biologics manufacturing. Under the current regime, this trade secrecy, combined with certain features of FDA …

Strengthening Research Through Data Sharing, Elizabeth Warren

Copyright, Fair Use, Scholarly Communication, etc.

Data sharing has incredible potential to strengthen academic research, the practice of medicine, and the integrity of the clinical trial system. Some benefits are obvious: when researchers have access to complete data, they can answer new questions, explore different lines of analysis, and more efficiently conduct large-scale analyses across trials. Other advantages, such as providing a guardrail against conflicts of interest in a clinical trial system in which external sponsorship of research is common and necessary, are less visible yet just as critical. I appreciate that there are many policy, privacy, and practical issues that need to be addressed in …

Converting Scholarly Journals To Open Access: A Review Of Approaches And Experiences, David J. Solomon, Mikael Laakso, Bo-Christer Björk, Peter Suber Editor

Copyright, Fair Use, Scholarly Communication, etc.

This report identifies ways through which subscription-based scholarly journals have converted their publishing models to open access (OA). The major goal was to identify specific scenarios that have been used or proposed for transitioning subscription journals to OA so that these scenarios can provide options for others seeking to “flip” their journals to OA. The report is based on the published literature as well as “gray” literature such as blog posts and press releases. In addition, interviews were conducted with eight experts in scholarly publishing. The report identifies a variety of goals for converting a journal to OA. While there …

Recommendations For Standardized International Rights Statements, Rightsstatements.Org, International Rights Statements Working Group

Copyright, Fair Use, Scholarly Communication, etc.

Europeana, the Digital Public Library of America (DPLA), and many other 1 2 libraries, archives and other cultural heritage institutions believe that everyone should be able to engage with their cultural heritage online. We can help achieve this by giving cultural heritage institutions simple and standardized terms to summarize the copyright status of Works in their collection and how they may be used. These simple and standardized terms we call “Rights Statements.” Providing this information is essential for those who wish to actively engage with the Works they find online. Can they use it in a school report? Print it …

Open Educational Resources: Policy, Costs And Transformation, Fengchun Miao, Sanjaya Mishra, Rory Mcgreal

Copyright, Fair Use, Scholarly Communication, etc.

Open Educational Resources (OER) — teaching, learning and research materials that their owners make free for others to use, revise and share — offer a powerful means of expanding the reach and effectiveness of worldwide education.

The Commonwealth of Learning (COL) and UNESCO co-organised the World OER Congress in 2012 in Paris. That Congress resulted in the OER Paris Declaration: a statement that urged governments around the world to release, as OER, all teaching, learning and research materials developed with public funds.

This book, drawing on 15 case studies contributed by 29 OER researchers and policy-makers from 15 countries across …

United States Geological Survey (Usgs) Response To The Office Of Science And Technology Policy Memo, 2013: Public Access Plan (January 2016)

Copyright, Fair Use, Scholarly Communication, etc.

USGS response to OSTP memo, 2013: Public Access Plan (January 2016)

Branding Taxation, Xuan-Thao Nguyen, Jeffrey A. Maine

Georgia Law Review

Branding is important not only to businesses, but also to the economy. The intellectual property laws and tax laws should thus further the legitimate goals of encouraging and protecting brand investments while maintaining a sound tax base. Intellectual property protections for branding depend on advertisement and enforcement, both of which demand significant amounts of private investment by firms. Although one would expect similar tax treatments of both categories of investment, the categories are actually treated as vastly different for federal income tax purposes. Under the current tax system, advertising costs incurred to foster brand equality are generally expensed whereas litigation …

Public Enforcement Of Patent Law, Megan M. La Belle

Scholarly Articles

Law enforcement in the modern regulatory state is largely a joint enterprise. In areas such as securities, antitrust, civil rights, and environmental law, enforcement responsibilities are allocated between public and private actors. Patent law, on the other hand, is enforced almost exclusively through private lawsuits. Considering patent law's constitutionally mandated public purpose--“to promote the Progress of Science and useful Arts”-- this privatization of patent enforcement is troubling.

In recent years, there has been some movement away from this purely private enforcement scheme for patent law. The Department of Justice and the Federal Trade Commission, for example, have involved themselves in …

Innovation Rewards: Towards Solving The Twin Market Failures Of Public Goods, Gregory N. Mandel

Vanderbilt Journal of Entertainment & Technology Law

The challenge of achieving socially optimal incentives for innovation in public goods faces twin market failures: a market failure to adequately promote public goods invention and a market failure to implement innovative public goods once developed. Though innovation in private goods sometimes faces the former hurdle, often ameliorated by intellectual property law, the interaction of both market failures for public goods innovation raises unique difficulties.

Environmentally beneficial technology presents an illustration of the innovation problem for public goods. Private actors lack sufficient incentives both to engage in environmentally beneficial innovation and to implement such innovation. While traditional intellectual property law …

Alternatives To March-In Rights, David S. Bloch

Vanderbilt Journal of Entertainment & Technology Law

The Bayh-Dole Act is an inspired piece of legislation. But its "march-in" provisions are too often a source of confusion and fear for private-sector companies that want to do business with the US government--despite the fact that the government has never exercised its march-in rights. Are there alternatives to march-in rights that would effectively serve the government's public policy needs while eliminating this perceived threat to private intellectual property rights? This Article describes march-in rights in theory and practice, and then weighs several alternatives to traditional Bayh-Dole march-in rights.

Government As Owner Of Intellectual Property? Considerations For Public Welfare In The Era Of Big Data, Ruth L. Okediji

Vanderbilt Journal of Entertainment & Technology Law

Open government data policies have become a significant part of innovation strategies in many countries, allowing access, use and re-use of government data to improve government transparency, foster civic engagement, and expand opportunities for the creation of new products and services. Rarely, however, do open data policies address intellectual property rights that may arise from free access to government data. Ownership of knowledge goods created from big data is governed by the default rules of intellectual property laws which typically vest ownership in the creator/inventor. By allowing, and in some cases actively encouraging, private capture of the downstream goods created …

The Lost Precedent Of The Reverse Doctrine Of Equivalents, Samuel F. Ernst

Vanderbilt Journal of Entertainment & Technology Law

Proponents of legislative patent reform argue that the current patent system perversely impedes true innovation in the name of protecting a vast web of patented inventions, the majority of which are never even commercialized for the benefit of the public. Opponents of such legislation argue that comprehensive, prospective patent reform legislation would harm the incentive to innovate more than it would curb the vexatious practices of non-practicing entities. But while the" Innovation Act" wallows in Congress, there is a common law tool to protect innovation from the patent thicket lying right under our noses: the reverse doctrine of equivalents. Properly …

Of Fences And Definite Patent Boundaries, Deepa Varadarajan

Vanderbilt Journal of Entertainment & Technology Law

Patent claims are supposed to mark the boundaries of a patent clearly so that competitors and follow-on innovators can avoid infringement. But commentators routinely lament the failure of patent claims to adequately perform this notice function. In numerous calls for patent reform, courts and scholars have contrasted the indeterminacy of patent claims with the clarity of real property boundaries. The Supreme Court recently echoed this sentiment in "Nautilus v. Biosig Instruments." In "Nautilus," the Court heightened the patent requirement of claim definiteness and reversed Federal Circuit precedent, which had allowed many ambiguous claims to survive invalidity challenges. This Article analyzes …

Over ©S: Dilemmas In Establishing Jurisdiction Over Foreign Sovereigns In Us Courts For Intellectual Property Infringement, Katherine Dutcher

Vanderbilt Journal of Entertainment & Technology Law

When a foreign state infringes a US-held intellectual property right abroad, it is unclear to what extent the Foreign Sovereign Immunities Act of 1976 (FSIA) bars suit in US courts. The FSIA's already complex commercial activity exception, which governs such actions, was further obfuscated by the Supreme Court's decision in Republic of Argentina v. Weltover, which held that "substantiality" and "foreseeability" could not be used to determine whether a foreign sovereign's conduct had a "direct effect" in the United States, thus warranting jurisdiction in a US court. In the context of IP infringement, where harms may be abstract and unquantifiable, …

Lenz V. Universal: A Call To Reform Section 512(F) Of The Dmca And To Strengthen Fair Use, Marc J. Randazza

Vanderbilt Journal of Entertainment & Technology Law

Under 17 U.S.C. § 512(f) of the Digital Millennium Copyright Act (DMCA), those who issue materially false takedown notices are liable for damages. However, Section 512(f) has not effectively protected fair use. Currently, the DMCA issuer only has to prove he considered fair use before issuing a takedown notice, but faces no liability for actually taking action against fair use. The outcome of the recent Ninth Circuit Court of Appeals case Lenz v. Universal shows the flaws in the language of the DMCA. This Article calls for a mild adjustment to Section 512(f) for the purpose of protecting fair use …

College Athlete Rights After O'Bannon: Where Do College Athlete Intellectual Property Rights Go From Here?, Victoria Roessler

Vanderbilt Journal of Entertainment & Technology Law

The recent O'Bannon v. NCAA decision, which gave student athletes a right in products that exploit their image and likeness, will have a profound impact on college athlete rights. This giant step forward will propel student athletes to fight for more intellectual property rights. Following the footsteps of professional athletes, these rights will likely include copyrighting sports moves, touchdown celebrations, and signature phrases as well as trademarking nicknames and touchdown dances. This Note encourages the adoption of a program giving student athletes these rights and allowing them to receive compensation, uncapped, that they would split evenly with his or her …

"Blurred Lines" Means Changing Focus: Juries Composed Of Musical Artists Should Decide Music Copyright Infringement Cases, Not Lay Juries, Jason Palmer

Vanderbilt Journal of Entertainment & Technology Law

The verdict in Williams v. Bridgeport Music, Inc., or the "Blurred Lines" case, surprised a lot of people. It surprised the public, as many did not expect there to be infringement. It also surprised the litigants, because the jury's special verdict form contained a logical inconsistency indicating that something had been decided incorrectly. However, the jury cannot be faulted for this inconsistency because it was tasked with deciphering the indecipherable. The fault lies in the way copyright law establishes infringement. This Note investigates the apparent circuit split in determining music copyright infringement and proposes that it is illusory. All circuits …

Implementing The Frand Standard In China, Jyh-An Lee

Vanderbilt Journal of Entertainment & Technology Law

The modern world relies on technical standards, most of which involve standard-essential patents (SEPs). To balance SEP holders'fair compensation with standard implementers' access to standardized technologies, standard-setting organizations (SSOs) generally require that their members commit to license their SEPs on a fair, reasonable,and non-discriminatory (FRAND) basis. In recent years, the communications industry has seen a growing amount of litigation concerning SEPs and FRAND in many jurisdictions. As China has grown into a major player and market in the worldwide communications business, its public policy, court decisions, and private business strategies concerning SEPs and FRAND are likely to have a huge …

Blackhawk Down Or Blackhorse Down? The Lanham Act’S Prohibition Of Trademarks That “May Disparage” & The First Amendment, Russ Versteeg

Oklahoma Law Review

No abstract provided.

The More Copyright Laws Change, The More Digital Challenges Stay The Same, Peter K. Yu

Faculty Scholarship

This essay was a contribution to the Liber Amicorum for Professor Jan Rosén of Stockholm University, a former president of the International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP). Drawing on Professor Rosén's scholarship, the essay shows how today's judges, legislators, policymakers and commentators continue to address questions that copyright and media law scholars have explored in the past decades.

Specifically, this essay focuses on two topics. The first topic concerns the exhaustion of distribution rights in computer software and other digital works, including regional exhaustion within the European Union. The second topic covers the …

The Competing Objectives Underlying The Protection Of Intangible Cultural Heritage, Peter K. Yu

Faculty Scholarship

One topic that has received considerable academic and policy attention concerns the key objectives underlying the establishment of this new framework. To help us develop a better and deeper understanding, this article outlines eight most widely documented objectives. While some of these objectives overlap or conflict with each other, others touch on issues that are of only marginal concern to some constituencies. By focusing on each objective in turn, this article aims to underscore the divergent, and at times competing, interests among the many stakeholders involved in the framework.

Although some readers may find the description of all eight underlying …

Fee Shifting For Ptab Proceedings, Megan M. La Belle

Scholarly Articles

Fee shifting in patent litigation has been a hot topic in recent years. In Octane Fitness v. ICON and Highmark v. Allcare, the Supreme Court made it easier to shift fees under 35 U.S.C. § 285, which allows courts to award reasonable attorney’s fees to prevailing parties in patent cases. Moreover, several bills have been introduced in Congress since 2013 that would expand courts’ power beyond the parameters of § 285. Various aspects of these proposals have been heavily debated, including whether fee shifting should be mandatory or discretionary, how to recover fees from the “real party in interest,” and …

Intellectual Property Law Hybridization, Clark D. Asay

University of Colorado Law Review

Traditionally, patent and copyright laws have been viewed as separate bodies of law with distinct utilitarian goals. Conventional wisdom holds that patent law aims to incentivize the production of inventive ideas, while copyright focuses on protecting the original expression of ideas, but not the underlying ideas themselves. This customary divide between copyright and patent laws finds some support in the distinction between "authors" and "inventors," as well as that between "writings" and "discoveries," in the U.S. Constitution's Intellectual Property Clause. And Congress, courts, and scholars have largely perpetuated the divide in separately enacting, interpreting, and analyzing copyright and patent laws …

Owning Red: A Theory Of Indian (Cultural) Appropriation, Angela R. Riley, Kristen A. Carpenter

Publications

In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group of the cultural expressions and resources of another. While these and other incidents make contemporary headlines, American Indians often experience these claims within a historical and continuing experience of dispossession. For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands, artifacts, bodies, religions, identities, and beliefs, all toward the project of conquest and colonization. Indian …

From The Editor, Susan Nevelow Mart

Publications

No abstract provided.

Facilitating Competition By Remedial Regulation, Kristelia A. García

Publications

In music licensing, powerful music publishers have begun—for the first time ever— to withdraw their digital copyrights from the collectives that license those rights, in order to negotiate considerably higher rates in private deals. At the beginning of the year, two of these publishers commanded a private royalty rate nearly twice that of the going collective rate. This result could be seen as a coup for the free market: Constrained by consent decrees and conflicting interests, collectives are simply not able to establish and enforce a true market rate in the new, digital age. This could also be seen as …

Five Decades Of Intellectual Property And Global Development, Peter K. Yu

Faculty Scholarship

The 2016-2017 biennium marks the historical milestones of several major pro-development initiatives relating to intellectual property law and policy. These important milestones include the Intellectual Property Conference of Stockholm in 1967, the adoption of the Declaration on the Right to Development (UNDRD) in 1986 and the establishment of the WIPO Development Agenda in 2007.

On January 1, 2016, the UN Sustainable Development Goals (SDGs) also came into force. Adopted by the UN General Assembly in September 2015, the 2030 Agenda for Sustainable Development featured 17 SDGs and 169 targets. Prominently mentioned in Target 3.b of SDG 3 are the WTO …

The Anatomy Of The Human Rights Framework For Intellectual Property, Peter K. Yu

Faculty Scholarship

Since the U.N. Sub-Commission on the Promotion and Protection of Human Rights adopted Resolution 2000/7 on "Intellectual Property Rights and Human Rights" more than fifteen years ago, a growing volume of literature has been devoted to the debates on the human rights limits to intellectual property rights, intellectual property and human rights, and intellectual property as human rights. Commentators, myself included, have also called for the development of a human rights framework for intellectual property. Thus far, very few commentators have explored the place of patent rights in this framework. Very little research, if any, has also been devoted to …