Intellectual Property Law Commons^™

The Recasting Of Copyright & Related Rights For The Knowledge Economy, P Bernt Hugenholtz, Mireille Van Eechoud, Stef J. Van Gompel, Natali Helberger, Lucie Guibault

Reports & Public Policy Documents

In the European Union, copyright law is increasingly a matter for the European legislator. Member states retain ever less competence to regulate intellectual property rights.

This study critically examines the 'acquis communautaire' in the field of copyright and related (neighbouring) rights, focusing on the seven copyright specific directives, from the 1991 Software directive to the 2001 Information Society Directive. It also deals with distinct issues that are on the agenda of the EU: After reviewing arguments for and against the extension of the term of protection of phonograms (sound recordings), the authors conclude there is no convincing case for extending …

Not All Copyright Infringers Are Created Equal: Why Federal Income Tax Is A Proper Deductible Expense For Non-Willful Copyright Infringers, Christine Ballard

Vanderbilt Journal of Entertainment & Technology Law

Case law is sparse on the issue of tax deductibility for non-willful infringers and, as such, cases representing copyright, patent, and trademark infringement have been used interchangeably in an attempt to develop a rule. It is necessary to point out, however, that there are different standards for obtaining and protecting these three different types of intellectual property. As such, this Note will first analyze the remedies available for copyrights, patents, and trademarks to determine whether different standards should apply regarding the deductibility of taxes from gross infringing revenue when determining actual damage awards. Next, this Note analyzes arguments that have …

Frozen In Time? New Technologies, Fixation, And The Derivative Work Right, Patrick W. Ogilvy

Vanderbilt Journal of Entertainment & Technology Law

This note will explore the adequacy of the scope of the derivative work right as it applies to new technologies and discuss how that right should be expanded to compensate for technological developments not foreseen when the current Copyright Act was enacted in 1976. The note will also provide a recommendation that could resolve all of the issues raised throughout. Part I provides a more detailed background of the jump-and-skip technology being used as an example to represent all referencing works. Part II first discusses and analyzes the present state of the derivative work right. It then addresses the purposes …

Cracks In The Great Wall: Why China's Copyright Law Has Failed To Prevent Piracy Of American Movies Within Its Borders, Jordana Cornish

Vanderbilt Journal of Entertainment & Technology Law

This note examines the current state of China's intellectual property rights protection as it relates to movie piracy. Part I examines the different types of film piracy occurring in China and the current severity of the problem for the United States motion picture industry. Part II traces the history of copyright law in China and examines China's commitments under the international copyright treaties it has signed with the United States and other nations through its recent accession to the WTO. Part III discusses why movie piracy in China is still on the rise despite these commitments and highlights why cultural, …

The Copyright Paradox, Tim Wu

Faculty Scholarship

Copyright law has become an important part of American industrial policy. Its rules are felt by every industry that touches information, and today that means quite a bit. Like other types of industrial policy, copyright in operation purposely advantages some sectors and disadvantages others. Consequently, today's copyright courts face hard problems of competition management, akin to those faced by the antitrust courts and the Federal Communications Commission.

How should courts manage competition using copyright? Over the last decade, writers have begun to try to understand the "other side" of copyright, variously called its innovation policy, communications policy, or regulatory side.Here …

Unravelling The Myth Around Open Source Licences - An Analysis From A Dutch And European Law Perspective, Lucie Guibault, Ot Van Daalen

Articles, Book Chapters, & Popular Press

Open source software licences are based on two fundamental principles: the possibility for users to use the software for any purpose and the possibility to modify and redistribute it without prior authorisation from the initial developer. Some open source software licences, like the General Public Licence (GPL), also impose a corollary obligation on the licensee: to make the source code available to other developers. The idea behind this form of licensing is that when programmers can read, redistribute and modify the source code for a piece of software, the software evolves. A number of legal challenges need to be addressed …

Television Formats: Caught In The Abyss Of The Idea/Expression Dichotomy, Jay Rubin

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Once And Future Copyright, James Gibson

Law Faculty Publications

Copyright is like a well-meaning but ultimately bothersome friend, eager to help but nearly impossible to get rid of. It attaches indiscriminately to the simplest acts of expression, without regard for whether the author needs or wants its protection. This automatic propertization made sense in the print era, when mass distribution of information was an expensive process rarely undertaken by those with no plans to profit from their creativity. It makes little sense today. The following article shows that copyright's overly solicitous nature is the source of several seemingly unrelated and intractable problems - e.g., closed code, copyright as censorship, …

Size Matters (Or Should) In Copyright Law, Justin Hughes

Articles

American copyright law has a widely recognized prohibition against the copyrighting of titles, short phrases, and single words. Despite this bar, effective advocacy has often pushed courts into recognizing independent copyright protection for smaller and smaller pieces of expression, particularly in recent cases involving valuation and taxonomy systems. Copyright case law is rife with dicta suggesting protection of short phrases and single words.

This instability in copyright law is rooted in the fiction that we deny copyright protection to short phrases and single words because they lack originality. In fact, there are many short phrases that cross copyright's low threshold …

Private Standards In Public Law: Copyright, Lawmaking And The Case Of Accounting, Lawrence A. Cunningham

Michigan Law Review

Government increasingly leverages its regulatory function by embodying in law standards that are promulgated and copyrighted by nongovernmental organizations. Departures from such standards expose citizens to criminal, civil, and administrative sanctions, yet private actors generate, control, and limit access to them. Despite governmental ambitions, no one is responsible for evaluating the legitimacy of this approach ex ante and no framework exists to facilitate analysis. This Article contributes an analytical framework and proposes institutional mechanisms to implement it. The lack of a comprehensive framework for evaluating copyright to standards embodied in law is surprising because the range of standards potentially affected …

Google's (Fair) Use Of Copyrighted Work, James Gibson

Law Faculty Publications

Letters to the Editor on Google's (Fair) Use of Copyrighted Work

A New Weapon Against Piracy: Patent Protection As An Alternative Strategy For Enforcement Of Digital Rights, Dennis S. Fernandez, Matthew Chivvis, Mengfei Huang

ExpressO

This article illustrates how patents and copyrights complement each other to provide a better defense for creative works. Copyrights protect expression, and patents protect underlying functions. Currently, the one-time strengths of copyrights are being eroded as courts allow new technologies to flourish which enable digital reproduction and piracy. This has encouraged companies and industries to move increasingly to patent protection and any company that fails to pursue this trend may be left behind. In sum, patents are a worthwhile strategy because they assist copyright owners in controlling the technology that enables infringement while copyrights alone would leave a company vulnerable …

Digital Wars -- Legal Battles And Economic Bottlenecks In The Digital Information Industries, Curt A. Hessler

ExpressO

The Digital Age has spawned major legal battles over the fundamental principles of intellectual property law and antitrust law. These diverse struggles can best be analyzed using the basic norm of "value added" from neo-classical normative economics. This analysis suggests that current intellectual property doctirnes provide excessive protection and current antitrust doctrines remain awkward in dealing with the cross-market leveraging of monopoly power in the presence of "natural monopolies" created by network effects.

Distinctively Delineated Fictional Characters Who Constitute The Story Being Told: Who Are They And Do They Deserve Separate Copyright Protection?, Jasmina D. Zecevic

ExpressO

Literary characters are protected within the copyright of the original work in which they appear, but the law is less clear when a character is separated from the original work and leads an independent life. The two main tests articulated by courts to deal with the phenomenon of an independent character, the “distinctly delineated” and “story being told” tests have not been particularly helpful. The tests are mainly used after a decision has already been reached to give the decision additional validity by uttering the magic words “distinctly delineated” or “story being told”.

A better alternative is to rely on …

Shades Of Grey: Can The Copyright Fair Use Defense Adapt To New Re-Contextualized Forms Of Music And Art?, Nicholas B. Lewis

American University Law Review

No abstract provided.

United States V. Martignon: The First Case To Rule That The Federal Anti-Bootlegging Statute Is Unconstitutional Copyright Legislation, Michael C. Shue

University of Miami Law Review

No abstract provided.

Harry Potter And The Three-Second Crime: Are We Vanishing The De Minimis Defense From Copyright Law?, Julie Cromer

ExpressO

No abstract provided.

Digital Wars -- Legal Battles And Economic Bottlenecks In The Digital Information Industries, Curt A. Hessler

ExpressO

The Digital Revolution has created the apparent anomaly that information, though very cheap to create and near costless to share, is managed by industries that are increasingly concentrated and roiled by endless legal warfare. This paper surveys the major legal battles by subjecting all of them to the familiar norm of "maximizing economic value added", as defined by neo-classical "welfare economics". The various legal wars are traced to defects and confusions in current legal approaches to intellectual property (the "property wars") and to antitrust doctrines (the "monopoly wars").

Building Universal Digital Libraries: An Agenda For Copyright Reform , Hannibal B. Travis

ExpressO

This article proposes a series of copyright reforms to pave the way for digital library projects like Project Gutenberg, the Internet Archive, and Google Print, which promise to make much of the world’s knowledge easily searchable and accessible from anywhere. Existing law frustrates digital library growth and development by granting overlapping, overbroad, and near-perpetual copyrights in books, art, audiovisual works, and digital content. Digital libraries would benefit from an expanded public domain, revitalized fair use doctrine and originality requirement, rationalized systems for copyright registration and transfer, and a new framework for compensating copyright owners for online infringement without imposing derivative …

The Role Of Levies In Canada's Digital Music Marketplace, Jeremy F. Debeer

Canadian Journal of Law and Technology

This paper considers whether such initiatives are a desirable alternative to the current system of exclusive proprietary copyrights. My goal is not to evaluate the nuances of any particular levy scheme or proposal, but to consider the implications of the concept from a specifically Canadian perspective. Despite the generality of the analysis, many of the observations and conclusions about the viability of levy schemes relate to Canada’s actual experiences with its existing private copying levy.

The paper concludes that tariffs or levies on the products and services of third parties are not the best method to support the Canadian music …

Breaking The Vicious Circularity: Sony's Contribution To The Fair Use Doctrine, Frank Pasquale

Faculty Scholarship

The fair use doctrine permits certain uses of copyrighted material that are unauthorized by the copyright holder. In 1984, the Supreme Court decided in Sony v. Universal Studios (Sony) that unauthorized home taping of television programs was a fair use of such programs. Decried by the dissent and frequently contested in ensuing cases, that decision sealed the majority's case that the videotape recorder was capable of substantial non-infringing uses and therefore legal.

In the twenty years since Sony, the dissent's skepticism about the fairness of time-shifting has gotten about as warm a reception in appellate courts as the majority's position. …

Do We Have Too Many Intellectual Property Rights?, Richard A. Posner

Marquette Intellectual Property Law Review

The Honorable Richard A. Posner discusses the dangers presented by the propertization of intellectual property rights, particularly in the areas of copyright and patent. Unlike physical property, intellectual property rights are limited by duration, scope, and allowance of faire use. These limitations underlie the existence of a rich public domain that encourages the most valuable uses of intellectual property by reducing transaction costs and encouraging the creation of additional creative works.

Divergent Evolution Of The Patent Power And The Copyright Power, Edward C. Walterscheid

Marquette Intellectual Property Law Review

Patent and copyright law in the United States derives from a constitutional grant of power to Congress, which drafted the Patent and Copyright Acts. The U.S. Supreme Court has addressed the meaning of various terms in the Patent and Copyright Clause, but only addressed the constitutionality of a copyright statute in 2003. The Court has never considered the constitutionality of a patent statute. The purpose of this article is to explore Congress' and the courts' diverging interpretations of the patent and copyright powers. It explores the reasons for this divergence, tracing the historic kinship between the two powers from the …

A Technical Critique Of Fifty Software Patents, Martin Campbell-Kelly, Patrick Valduriez

Marquette Intellectual Property Law Review

There has been a great deal of discussion on the desirability of software patents in the legal, economic, and technical academic literature. Case law is the basis of most of the legal literature on the topic. Typically, the basis of the economic literature on patents is the statistical analysis of large numbers of patents. The technical literature frequently hostile to patents often is based on an examination of a small number of pathologically bad patents The authors seek to overcome the inherent limitations of each category of article. The approach taken was to conduct a detailed, technical examination of the …

The Purpose Of Copyright Law In Canada, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

IN THREE RECENT CASES, the Supreme Court of Canada provided several pieces of the Canadian copyright policy puzzle. We now know that the economic purpose of copyright law is instrumentalist in nature, namely, to ensure the orderly production and distribution of, and access to, works of art and intellect. The Court added that copyright can not enter carelessly into the private sphere of individual users. By targeting end-users in recent lawsuits, copyright holders have also found out that it is difficult to enforce a right that has not been properly internalized. After reviewing the Supreme Court trilogy of cases, the …

Comment: Sony, Fair Use, And File Sharing, Stacey Dogan

Faculty Scholarship

In this short Commentary, I would like to explore just one of the interesting strands developed in her paper-the scope of personal fair use in Sony, and its implications for peer-to-peer file sharing. More specifically, I want to reflect on the suggestion that Sony's broad exemption for personal copying has eroded into something unrecognizable, and that it is this erosion-rather than any difference between file-sharing and time shifting-that explains the courts' hostility to the fair use defense in the peer-to-peer context.

Fair Use: Threat Or Threatened?, Wendy J. Gordon

Faculty Scholarship

Thank you for inviting me to address the Symposium. It is an honor to participate in the exchange of such interesting and informed views, and to be back at Case.

The original title for my talk had been Warring Frameworks for Fair Use. I had intended to discuss two interpretations of market failure analysis, and to suggest how resolving the conflict between those warring frameworks might resolve a variety of fair use issues.

But then it struck me that this might not be what you, a group made up of both generalists and specialists, would most want in a luncheon …

Panel Ii: Licensing In The Digital Age: The Future Of Digital Rights Management, Marybeth Peters, Joseph Salvo, Fred Von Lohmann, Hugh C. Hansen

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Panel Ii: Licensing In The Digital Age: The Future Of Digital Rights Management, Marybeth Peters, Joseph Salvo, Fred Von Lohmann, Hugh C. Hansen

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Martignon And Kiss Catalog: Can Live Performances Be Protected?, Brian Danitz

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.