Intellectual Property Law Commons^™

What's In A Name? The Terms "Commercial" And "Mediation" In The Singapore Convention On Mediation, Ellen E. Deason

Cardozo Journal of Conflict Resolution

One could interpret Shakespeare's famous quote as standing for the proposition that labels do not alter the essence of the thing named. In this article I draw inspiration from the quote to provide a foil for examining the use of the terms "commercial" and "mediation" in the Singapore Convention and Mediation Model Law. I will consider how the terms are framed and defined, the extent to which the names and their associated meanings introduce new ideas, and how their use might matter for the interpretation of important concepts in these instruments. Part I of the article discusses the term "commercial" …

Novel Adaptation To Stage And Screen: Rethinking The Contractual And Creative Process, Jennifer Rainville Mccabe

Cardozo Journal of Conflict Resolution

No abstract provided.

Patent Law And The Emigration Of Innovation, Greg Day, Steven Udick

Scholarly Works

Legislators and industry leaders claim that patent strength in the United States has declined, causing firms to innovate in foreign countries. However, scholarship has largely dismissed the theory that foreign patents have any effect on where firms invent, considering that patent law is bound by strict territorial limitations (as a result, one cannot strengthen their patent protection by innovating abroad). In essence, then, industry leaders are deeply divided from scholarship about whether innovative firms seek out jurisdictions offering stronger patent rights, affecting the rate of innovation.

To resolve this puzzle, we offer a novel theory of patent rights — which …

Prior Art In Inter Partes Review, Stephen Yelderman

Journal Articles

This Essay is an empirical study of the evidence the Patent Trial and Appeal Board relies upon when cancelling patents in inter partes review. To construct our dataset, we collected every final written decision invalidating a patent claim over a twelve-month period. We coded individual invalidation events on a reference-by-reference, claim-by-claim basis. Drawing on this dataset, we report a number of details about the prior art supporting patent cancellation, including the frequency with which U.S. patents, foreign patents, and printed publications were cited, the frequency with which the invalidating prior art would have been amenable to a pre-filing prior art …

Property And Equity In Trademark Law, Mark P. Mckenna

Journal Articles

This essay, delivered as the Nies Lecture at Marquette Law School, focuses on changes in the doctrinal structure of trademark law over the course of the last century — specifically with respect to the relationship between trademark law’s limits and the broader common law of unfair competition. Changes in that relationship, I will argue, meaningfully increased trademark law's emphasis on property — what the plaintiff owns — and deemphasized legal rules that focused on the defendant’s conduct.

Comparative Analysis Of Innovation Failures And Institutions In Context, Mark P. Mckenna

Journal Articles

Many different legal and non-legal institutions govern and therefore shape knowledge production. It is tempting, given the various types of knowledge, knowledge producers, and systems with and within which knowledge and knowledge producers and users interact, to look for reductionist shortcuts — in general but especially in the context of comparative institutional analysis. The temptation should be resisted for it leads to either what Harold Demsetz called the Nirvana Fallacy or what Elinor Ostrom critiqued as myopic allegories.

We suggest that comparative institutional analysis must be accompanied by comparative failure analysis, by which we mean rigorous and contextual comparative analysis …

Tailoring Intellectual Property Rights To Reduce Uniformity Cost, Michael W. Carroll

Contributions to Books

No abstract provided.

Frand Royalties, Anti-Suit Injunctions And The Global Race To The Bottom In Disputes Over Standards-Essential Patents, Jorge L. Contreras

Utah Law Faculty Scholarship

While national courts have long exercised extraterritorial authority over domestic entities whose conduct abroad is prohibited in the domestic jurisdiction, national courts have recently begun to use disputes over domestic patent rights as vehicles for shaping the global business arrangements of private parties even absent any violation of national law. This phenomenon has become particularly pronounced in the context of “fair, reasonable and non-discriminatory” (FRAND) licenses of patents that are essential to the manufacture and sale of standardized products. This essay explores the increasing extraterritorial effect of national judicial decisions on licenses for standards-essential patents, including recent instances in which …

#Squadgoals: A Response To Seth Waxman, Amelia Rinehart

Utah Law Faculty Scholarship

Former Solicitor General Seth Waxman’s recent remarks, framing our current age of patent law in the Supreme Court as “interesting times,” unquestionably captures the exhilaration of an active Supreme Court in this area of the law. Waxman knows his way around patent cases decided by the Supreme Court — he presented arguments in four of the six patent cases in the 2016 Term — but he also has an extensive appellate practice before the Court of Appeals for the Federal Circuit (“Federal Circuit”), which has exclusive appellate jurisdiction over patent cases. Given his substantial experience in patent appellate litigation, Waxman …

The False Promise Of Health Data Ownership, Jorge L. Contreras

Utah Law Faculty Scholarship

In recent years there have been increasing calls by patient advocates, health law scholars and would-be data intermediaries to recognize personal property interests in individual health information (IHI). While the propertization of IHI appeals to notions of individual autonomy, privacy and distributive justice, the implementation of a workable property system for IHI presents significant challenges. This essay addresses the issues surrounding the propertization of IHI from a property law perspective. It first observes that IHI does not fit recognized judicial criteria for recognition as personal property, as IHI defies convenient definition, is difficult to possess exclusively, and lacks justifications for …

Patents, Disclosure, And Biopiracy, Aman Gebru

Law Faculty Publications

No abstract provided.

Copyrightx [Course Review], Jill Cirasella

Publications and Research

Review of the free online course CopyrightX.

Once Upon A Time In Nft: Blockchain, Copyright, And The Right Of First Sale Doctrine, Katya Fisher

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Addressing The Value Gap In The Age Of Digital Music Streaming, Daniel L. Lawrence

Vanderbilt Journal of Transnational Law

This Note analyzes a global music industry problem known as the value gap. The value gap represents the disparity between the value that music-streaming platforms extract from musical content and the revenue generated by those who create and invest in the creation of such content. The international rise in digital music streaming has contributed greatly to the expansion of the value gap. This is largely because outdated laws like the Digital Millennium Copyright Act in the United States and other similar statutes around the globe contain safe harbor provisions that shield certain music-streaming services from copyright-infringement liability. Safe harbor protection …

Existential Copyright And Professional Photography, Jessica Silbey, Eva E. Subotnik, Peter Dicola

Faculty Publications

Intellectual property law has intended benefits, but it also carries certain costs—deliberately so. Skeptics have asked: Why should intellectual property law exist at all? To get traction on that overly broad but still important inquiry, we decided to ask a new, preliminary question: What do creators in a particular industry actually use intellectual property for? In this first-of-its-kind study, we conducted thirty-two in-depth qualitative interviews of photographers about how copyright law functions within their creative and business practices. By learning the actual functions of copyright law on the ground, we can evaluate and contextualize existing theories of intellectual property. More …

Scope And Justification Of The Right Of Publicity, Jeremy N. Sheff

Faculty Publications

(Excerpt)

Thank you to Professor June Besek, and thanks to everyone here at Columbia for the invitation. June, to correct one of your introductions here—Mark McKenna is too humble to say so, but in addition to being a widely recognized scholar, he was elected yesterday to the American Law Institute, which is well deserved given his immense contributions to Intellectual Property Law scholarship.

Mark and I have talked about this topic, in part in preparation for today, and so a lot of what I say is going to reflect some of what he has said, and I think that is …

Blockchain Technology: The Blueprint For Rebuilding The Music Industry?, Jaclyn Wishnia

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Thicke, Don't Kill My Vibe: The Copyrightability Of A "Groove" And Related Implications For Contemporary Rap Music, Tyler W. Morris

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Booming Business And The Resulting Trade Secrets: How The Increase In United States And European Union Trade Led To Resulting Trade Secrets Directives And The Domination Of The Intellectual Property Field, Jordana Balsam

Cardozo International & Comparative Law Review

The note argues that the surge in trade between the United States and the European Union has led to the implementation of new trade secrets directives in both regions, establishing trade secrets as the dominant form of intellectual property over patents. The Defend Trade Secrets Act (DTSA) in the U.S. and the Trade Secrets Directive (TSD) in the E.U. were enacted to address the growing need for robust protection of trade secrets in an increasingly globalized economy.

The Limitations Of Information: Rethinking Soft Paternalistic Interventions In Copyright Law, Yifat Nahmias

Cardozo Arts & Entertainment Law Journal

Authors and intermediaries seldom enjoy equal bargaining power. This disparity-as well as information asymmetries-has been claimed to significantly undermine authors' ability to capture a fair share of the wealth generated from their creative efforts and contributions, thereby possibly reducing their incentive to create expressive works and compromising the myriad other benefits that copyright protection is meant to provide. To address this problem, legislatures have adopted soft paternalistic interventions designed to improve authors' choices without applying a hard-handed approach. Such interventions benevolently push the author away from risk or encourage her to make decisions that the legislator perceives to be in …

Cultural Appropriation Of Traditional Garment Designs In The Post-Star Athletica Era, Sahara F. Farzaneh

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Introductions, Julia Spivak, Tonya M. Evans

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Panel 1: Digital Art And Digital Collectibles, Ross Blum, Steve R. Schindler, Amy Whitaker, Elena Zavelev, Christopher Buccafusco

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Shared Value Over Fair Use: Technology, Added Value, And The Reinvention Of Copyright, Amy Whitaker

Cardozo Arts & Entertainment Law Journal

The protection of fair use in the arts has become an inflexible binary. Either artist Shepard Fairey has permission to use the Associated Press photograph of Barack Obama to create the Hope Poster, or he has stolen the image in violation of copyright. This legal framework is rigid, inaccurate, and creatively unsafe. Yet it is the interpretation, not the doctrine itself, that needs shifting. The copyright statute already includes an overlooked "value" test that can more accurately reflect collaboration and sampling in the digital age. And yet instead, some scholars have responded to digital copying by suggesting we throw out …

Intellectual Property: A Beacon For Reform Of Investor-State Dispute Settlement, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

Investor-state dispute-settlement (ISDS) clauses give multinational investors (corporations) a right to sue a state in a binding proceeding before an independent arbitration tribunal. This jurisgenerative right to file a claim in an international tribunal with mandatory jurisdiction is generally reserved to States. ISDS is a mechanism meant to protect the private property of multinational investors against certain acts of public authorities.

Intellectual Property differs from the more traditional private (property) law interests that ISDS aims to protect. IP incorporates public policy objectives such as innovation, access to information or public health that are reflected in limitations and exceptions to the …

Improper Appropriation, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

The traditional (Arnstein) test for copyright infringement is satisfied when the owner of a valid copyright establishes unauthorized copying by the defendant. To demonstrate unauthorized copying, one of the major tests is that the plaintiff must first show that her work was actually copied; second, she must establish substantial similarity and/or that the copying amounts to an improper or unlawful appropriation. The second prong is satisfied when (i) protected expression in the earlier work was copied and (ii) the amount of the copyrighted work that is copied must be more than de minimis. This Article examines, first, how impropriety has …

The Care Principles For Indigenous Data Governance, Global Indigenous Data Alliance

Copyright, Fair Use, Scholarly Communication, etc.

The CARE Principles for Indigenous Data Governance

The current movement toward open data and open science does not fully engage with Indigenous Peoples rights and interests. Existing principles within the open data movement (e.g. FAIR: findable, accessible, interoperable, reusable) primarily focus on characteristics of data that will facilitate increased data sharing among entities while ignoring power differentials and historical contexts. The emphasis on greater data sharing alone creates a tension for Indigenous Peoples who are also asserting greater control over the application and use of Indigenous data and Indigenous Knowledge for collective benefit.

This includes the right to create value …

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 …

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 …

Where Should I Publish? A Library Handout For Researchers, Elsevier

Copyright, Fair Use, Scholarly Communication, etc.

5 warning signs of a predatory journal

7 essential questions to ask when evaluating a journal

Checklist to determine whether a journal is reputable

Tools to find journals based on various selection criteria

By reviewing and applying the dos and don’ts within these pages, you will increase the likelihood of publishing in the right journal for your work. Identifying the right title isn’t easy. In addition to using this guide, consider booking a consultation with a librarian to help you identify and apply your selection criteria.