Intellectual Property Law Commons^™

Snapshot Of Trade Secret Developments, Elizabeth A. Rowe

UF Law Faculty Publications

As we enter the second year post enactment of the federal Defend Trade Secrets Act, this Paper presents a snapshot of developments to assess whether there appear to be any significant doctrinal changes afoot in trade secret litigation, both civil and criminal, during the past year. I take a qualitative look at some of the substantive rulings from 2017 to date. My assessment based on this limited sampling is that there do not appear to be any dramatic changes to the doctrinal development of the law to date.

The paper highlights some noteworthy civil cases from select federal and state …

Merging Offensive-Speech Cases With Viewpoint-Discrimination Principles: The Immediate Impact Of Matal V. Tam On Two Strands Of First Amendment Jurisprudence, Clay Calvert

UF Law Faculty Publications

This Article examines flaws with the U.S. Supreme Court’s 2017 decision in Matal v. Tam that equated giving offense with viewpoint discrimination. Already, the Court’s language in Tam that “giving offense is a viewpoint” is being cited by multiple lower courts. This Article argues, however, that giving offense is not synonymous with viewpoint discrimination. This Article contends that the Court in Tam conflated two distinct strands of First Amendment jurisprudence—namely, its offensive-speech cases with principles against viewpoint discrimination. The Article proposes two possible paths forward to help courts better clarify when a case such as Tam should be analyzed as …

Evaluating A Unified Intellectual Property System Of Internet Service Providers In The Electronic Commerce Law -- A Comparative Research Between China And The U.S., Yifan Huang

Maurer Theses and Dissertations

As the Electronic Commerce Law went into effective in Jan. 1st, 2019, not only did China establish a unified IP protection system of ISPs, but also set up a blueprint for a comprehensive mechanism of ISPs for the future improvement. The question is whether this new law can effectively prevent the serious IP infringement issues of ISPs and therefore successfully improve the IP protection in China. To answerer this question, the dissertation analyzes the development of the mechanism of ISPs in copyright and trademark regimes before the Electronic Commerce Law, and seeks to demonstrate the impact of the Electronic Commerce …

Forgotten Statutes: Trade Law's Domestic (Re)Turn, Kathleen Claussen

Articles

Since the first half of the twentieth century, the U.S. Congress has increasingly delegated its authority over tariffs to the U.S. president. Some of these statutes permit private actors to petition for tariff relief. Some also permit the president to initiate an investigation and subsequently to take trade-related or other action when certain criteria are met. Since the 1990s, however, a robust multilateral trading system has required the United States and others to resolve disputes over trade measures in Geneva, rather than through unilateral policy steps under these tariff authorities. In a stark departure from this movement away from unilateral …

A History Of Competition: The Impact Of Antitrust On Hong Kong’S Telecommunications Markets, Sandra Marco Colino

Fordham Intellectual Property, Media and Entertainment Law Journal

Hong Kong has only had cross-sector competition law since 2015, but the city’s telecommunications markets have been subject to sector-specific antitrust provisions for over two decades. The importance of nurturing an efficient, innovative, and competitive telecoms industry for Hong Kong’s economic prosperity was acknowledged already at the time the sector was liberalized in the 1990s. Yet until the late 2000s, the government vehemently opposed the adoption of competition law in virtually all other sectors of the economy. This paper examines the effectiveness of the regulatory framework set up to guarantee the protection of competition in the telecommunications sector in Hong …

Fictitious Commodities: A Theory Of Intellectual Property Inspired By Karl Polanyi’S “Great Transformation”, Alexander Peukert

Fordham Intellectual Property, Media and Entertainment Law Journal

The puzzle this Article addresses is this: how can it be explained that intellectual property (IP) laws and IP rights (IPRs) have continuously grown in number and expanded in scope, territorial reach, and duration, while at the same time have been contested, much more so than other branches of property law? This Article offers an explanation for this peculiar dynamic by applying insights and concepts of Karl Polanyi’s book “The Great Transformation” to IP. It reconstructs and then applies core Polanyian concepts of commodification (infra, II), fictitious commodities (infra, III), and countermovements (infra, IV) to the three main areas of …

From Venetian Glass To Contemporary Intellectual Property: Revisiting Tailored Patent Regimes (Book Review), Ana Santos Rutschman

All Faculty Scholarship

This piece reviews Stefania Fusco's “Murano Glass Vase" and "Lessons from the Past." In Murano Glass Vase, Fusco recounts the history of the glassmaking industry in Venice, framing it as the natural experiment from which the patent system sprang into the world. Fusco emphasizes the mix of exclusionary rights and trade secrecy that formed the backbone of Venetian innovation policy against the backdrop of a heavily regulated and protectionist economy. In “Lessons from the Past,” Fusco draws on original research performed at the Venetian State Archives to further the Murano narrative by looking at how the Venetian government fueled an …

Drawing Trump Naked: Curbing The Right Of Publicity To Protect Public Discourse, Thomas E. Kadri

Articles

From Donald Trump to Lindsay Lohan to Manuel Noriega, real people who are portrayed in expressive works are increasingly targeting creators of those works for allegedly violating their "right of publicity "-a state-law tort that prohibits the unauthorized use of a person's name, likeness, and other identifying characteristics. Intuitively, we might feel confident that Mark Zuckerberg should not be able to block his portrayal in The Social Network movie, that Marilyn Monroe could not have stopped Andy Warhol from exhibiting his vibrant paintings, that O.J. Simpson could not have demanded money from FX to air the American Crime Story docudrama. …

The Invention Secrecy Act: The Uspto As A Gatekeeper Of National Security, Scott Locke

IP Theory

The United States Patent and Trademark Office (“USPTO”) has the privilege of reviewing hundreds of thousands of inventions each year before the public learns about them. Consequently, the USPTO is uniquely positioned as a funnel through which the Government can collect information about new technologies and determine which ones have implications for the safety and welfare of the nation. Under the Invention Secrecy Act, the Commissioner for Patents may order that an invention for which patent protection is sought be kept secret if disclosure of the invention might be detrimental to national security.

In order for the USPTO to review …

Design Patent Damages: A Critique Of The Government’S Proposed 4-Factor Test For Determining The “Article Of Manufacture”, Perry J. Saidman

IP Theory

The Supreme Court in Samsung Electronics Co. v. Apple, Inc. wrestled with the question of determining the meaning of “article of manufacture” in 35 U.S.C. § 289 when it comes to calculating the total profit of the infringer that is awarded to the patentee.

In its Petition for Certiorari, Samsung raised the novel theory that the article of manufacture could be less than the entire product sold by the infringer. The Supreme Court agreed to hear the following issue, as framed in Samsung’s Petition:

Where a design patent is applied to only a component of a product, should an …

Tc Heartland: It’S Time To Take Stock, Daniel Kazhdan, Sanjiv P. Laud

IP Theory

It has been a little over a year and a half since the Supreme Court issued its groundbreaking venue decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, shaking up the status quo in U.S. patent infringement litigation. The first months after TC Heartland saw a flurry of activity as litigants and courts wrestled with the impact of the decision on pending cases, pondered the true meaning of a “regular and established place of business,” and explored many other questions left by the TC Heartland decision. Eighteen months and several writs of mandamus later, it is now …

The Blurred Protection For The Feel Or Groove Of A Song Under Copyright Law: Examining The Implications Of Williams V. Gaye On Creativity In Music, Olivia Lattanza

Touro Law Review

No abstract provided.

The Post-Alice Jurisprudence Pendulum And Its Effects On Patent Eligible Subject Matter, John Robert Sepúlveda

Touro Law Review

No abstract provided.

Rp-4.4.2 Patent And Technology Transfer Policy [University Of Nebraska Board Of Regents Policies], University Of Nebraska Board Of Regents

Copyright, Fair Use, Scholarly Communication, etc.

This Patent and Technology Transfer Policy is adopted for the purpose of providing general policy regulations to implement Section 3.10 of the University of Nebraska Bylaws of the Board of Regents.

Copyright Term And The Public Domain In The United States, Peter B. Hirtle

Copyright, Fair Use, Scholarly Communication, etc.

Footnote 1:

1. This chart was first published in Peter B. Hirtle, "Recent Changes To The Copyright Law: Copyright Term Extension," Archival Outlook, January/February 1999. This version is current as of 1 January 2019. The most recent version is found at https://copyright.cornell.edu/publicdomain. For some explanation on how to use the chart and complications hidden in it, see Peter B. Hirtle, "When is 1923 Going to Arrive and Other Complications of the U.S. Public Domain," Searcher (Sept 2012). The chart is based in part on Laura N. Gasaway's chart, "When Works Pass Into the Public Domain," at <http://www.unc.edu/~unclng/public-d.htm>, and similar …

Assessing The Size Of The Affordability Problem In Scholarly Publishing, Alexander Grossman, Björn Brembs

Copyright, Fair Use, Scholarly Communication, etc.

For many decades, the hyperinflation of subscription prices for scholarly journals have concerned scholarly institutions. After years of fruitless efforts to solve this “serials crisis”, open access has been proposed as the latest potential solution. However, also the prices for open access publishing are high and are rising well beyond inflation. What has been missing from the public discussion so far is a quantitative approach to determine the actual costs of efficiently publishing a scholarly article using state-of-the-art technologies, such that informed decisions can be made as to appropriate price levels. Here we provide a granular, step-by-step calculation of the …

Digital CommonsTm: 10 Strategies To Expand Your Institution’S Global Research Visibility With A Next-Generation Ir, Elsevier

Copyright, Fair Use, Scholarly Communication, etc.

This short paper explores 10 themes of next generation repositories, elevating what is possible, and giving competitive advantage to forward-thinking institutions who are ready to take the next step in their IR strategy.

Since the concept was first launched in 2003, over 5,200 institutions worldwide have adopted an Institutional Repository (IR) to store and manage all their academic research and archival content, publish and manage journals, and more.

In November 2017, the global Confederation of Open Access Repositories (COAR) published the report, Behaviours and Technical Recommendations of the COAR Next Generation Repositories Working Group¹. This sets out a framework positioning …

Mapping The Scholarly Communication Landscape: 2019 Census, Katherine Skinner

Copyright, Fair Use, Scholarly Communication, etc.

This report documents the design, methods, results, and recommendations of the 2019 Census of Scholarly Communication Infrastructure Providers (SCIP), a Census produced by the “Mapping the Scholarly Communication Infrastructure” project team (Andrew W. Mellon Foundation; Middlebury College, 2018-19). The SCIP Census was created to document key components comprising the organizational, business, and technical apparatuses of a broad range of Scholarly Communication Resources (SCRs) – the tools, services, and systems that are instrumental to the publishing and distribution of the scholarly record. Using Community Cultivation – A Field Guide (Educopia, 2018) as a framework, we designed a Conceptual Model detailing the …

Open Scholarship And The Need For Collective Action, Knowledge Exchange, Cameron Neylon,, Rene Belsø,, Magchiel Bijsterbosch, Bas Cordewener, Jérôme Foncel, Sascha Friesike, Aileen Fyfe, Neil Jacobs, Matthias Katerbow, Mikael Laakso, Laurents Sesink

Copyright, Fair Use, Scholarly Communication, etc.

The aim of this book is to enhance community understanding of the mechanisms and processes that can enable Open Scholarship to reach its full potential. The book is the result of a Knowledge Exchange (KE) (knowledge-exchange.info/about-us) activity to explore the economy of Open Scholarship across six European countries (Denmark, Finland, France, Germany, the Netherlands and the UK) and beyond.

Many of the challenges in navigating the transition to Open Scholarship are economic, either in the sense of being directly financial, or in the sense of being related to incentives. We therefore focus on the economic arena. Our conclusion is that …

Fractional Authorship & Publication Productivity, Kate Gasson, Rachel Herbert, Alex Ponsford

Copyright, Fair Use, Scholarly Communication, etc.

Authors divide their research output across publications, contributing via research collaborations

The trend is for authors to produce more publications per year (increased fractionalization) but for the overall number of publications per author to decrease

We suggest that the effort required to participate in research collaborations is a factor in the decrease in publications per author

Are authors collaborating more in response to the pressure to publish?

Growth in the number of scholarly publications each year has been well documented (e.g., Bornmann & Mutz, 2015, Figure 1). But how has that growth been achieved? Is it purely due to increasing …

From Coalition To Commons: Plan S And The Future Of Scholarly Communication, Rob Johnson

Copyright, Fair Use, Scholarly Communication, etc.

Abstract

The announcement of Plan S in September 2018 triggered a wide-ranging debate over how best to accelerate the shift to open access. The Plan’s ten principles represent a call for the creation of an intellectual commons, to be brought into being through collective action by funders and managed through regulated market mechanisms. As it gathers both momentum and critics, the coalition must grapple with questions of equity, efficiency and sustainability. The work of Elinor Ostrom has shown that successful management of the commons frequently relies on polycentricity and adaptive governance. The Plan S principles must therefore function as …

The Global Disinformation Order: 2019 Global Inventory Of Organised Social Media Manipulation, Samantha Bradshaw, Philip N. Howard

Copyright, Fair Use, Scholarly Communication, etc.

Executive Summary

Over the past three years, we have monitored the global organization of social media manipulation by governments and political parties. Our 2019 report analyses the trends of computational propaganda and the evolving tools, capacities, strategies, and resources.

1. Evidence of organized social media manipulation campaigns which have taken place in 70 countries, up from 48 countries in 2018 and 28 countries in 2017. In each country, there is at least one political party or government agency using social media to shape public attitudes domestically.

2.Social media has become co-opted by many authoritarian regimes. In 26 countries, computational propaganda …

Academic Special Collections And The Myths Of Copyright, Teresa Auch Schultz, Dana Miller

Copyright, Fair Use, Scholarly Communication, etc.

This study compares the copyright and use policy statements posted on the websites of the special collections of Association of Research Libraries member libraries. In spring 2018, 99 academic special collections websites were viewed, and data was collected based on the following: 1) presence and content of a general copyright statement; 2) mention of copyright owners besides the special collections; 3) presence and accuracy of statements regarding fair use and public domain; 4) policies for patron-made copies; 5) whether the special collections required its permission and/or the copyright owner’s permission to publish; 6) whether any use or license fees were …

Harmonization And Interoperability Of Metadata Schemes Used At The National Autonomous University Of Mexico (Unam) Repositories: The Iibiunam Repository And / Y Armonización E Interoperabilidad De Los Esquemas De Metadatos Utilizados En Repositorios De La Universidad Nacional Autónoma De México (Unam): El Repositorio Iibi-Unam, Filiberto Felipe Martínez Arellano, Noel Perea Reyes, Dante Ortiz Ancona, Juan Miguel Palma Peña

Copyright, Fair Use, Scholarly Communication, etc.

English

As a result of the Open Access (OA) movement, it is undeniable that all over the world there are many completed and ongoing projects of institutional repositories (IR) as a new alternative for scientific communication. IR facilitate access to research outputs, i.e. articles, books, book chapters, theses and dissertations, among other publications. The creation of IR has been widely promoted in Mexico and Latin America. The Institute of Research on Library Science and Information [Instituto de Investigaciones Bibliotecológicas y de la Información, IIBI], as one of the 59 research institutes of the National Autonomous University of Mexico [Universidad Nacional …

Ifla Library Publishing Special Interest Group Action Plan 2019-2020, Ifla Sig Library Publishing

Copyright, Fair Use, Scholarly Communication, etc.

The 2019-2020 action plan for the newly-created International Federation of Library Associations and Institutions Special Interest Group on Library Publishing (IFLA SIG LP). Includes information about strategic directions, key initiatives, funding needs, and ways to measure outputs.

Placebo Marks, Jake Linford

Scholarly Publications

Scholars often complain that sellers use trademarks to manipulate consumer perception. This manipulation ostensibly harms consumers by limiting their ability to make informed choices. For example, holding other things constant, consumers spend more money on goods with a high-performance reputation. Critics characterize that result as wasteful, if not anticompetitive. But recent marketing research shows that trademarks with a high-performance reputation may sometimes influence perception to the benefit of the consumer.

A trademark with a high-performance reputation can deliver a performance-enhancing placebo effect. Research subjects perform better at physical and mental tasks when they prepare or play with a product bearing …

Clown Eggs, David Fagundes, Aaron Perzanowski

Faculty Articles

Since 1946, many clowns have recorded their makeup by having it painted on eggs that are kept in a central registry in Wookey Hole, England. This tradition, which continues today, has been referred to alternately as a form of informal copyright registration and a means of protecting clowns’ property in their personae. This Article explores the Clown Egg Register and its surrounding practices from the perspective of law and social norms. In so doing, it makes several contributions. First, it contributes another chapter to the growing literature on the norms-based governance of intellectual property, showing how clowns—like comedians, roller derby …

The New Legal Landscape For Text Mining And Machine Learning, Matthew Sag

Faculty Articles

Now that the dust has settled on the Authors Guild cases, this Article takes stock of the legal context for TDM research in the United States. This reappraisal begins in Part I with an assessment of exactly what the Authors Guild cases did and did not establish with respect to the fair use status of text mining. Those cases held unambiguously that reproducing copyrighted works as one step in the process of knowledge discovery through text data mining was transformative, and thus ultimately a fair use of those works. Part I explains why those rulings followed inexorably from copyright's most …

The Fallacy Of Defensive Protection For Traditional Knowledge, Margo A. Bagley

Faculty Articles

Proponents of databases as defensive protection posit that having sources of traditional knowledge easily accessible to, and searchable by, examiners during the prosecution process should minimize the grant of patents covering traditional knowledge, and avoid the problems such erroneously granted patents may produce. Some countries, such as India, which support an international sui generis positive protection instrument, also support the use of traditional knowledge databases, as the two approaches are not mutually exclusive. India's CSIR, which created and maintains the TKDL, asserts that the database has thwarted the grant of scores of patents in IP offices across the globe, although …

Institutional Design For Innovation: A Radical Proposal For Addressing § 101 Patent Eligible Subject Matter, Kristen Osenga

Law Faculty Publications

The doctrine of patent-eligible subject matter is a mess, and it is weakening patent rights in this country. Nearly everyone, from the bar to the bench and from academia to industry, has called for reform. Multiple proposals to amend 35 U.S.C. § 101 have been drafted, each aimed at trying to make the doctrine more workable. Although offered with the best intentions, the proposals to fix patent-eligible subject matter are doomed to fail because none of the proposals address which institution is best suited to determine patent eligibility.

This Article takes a different, and perhaps radical, tactic. Specifically, patent-eligible subject …