Intellectual Property Law Commons^™

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 …

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 …

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.

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

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Intellectual Property Rights In Digital Media: A Comparative Analysis Of Legal Protection, Technological Measures And New Business Models Under E.U. And U.S. Law, Nicola Lucchi

ExpressO

The production of digital content is a phenomenon which has completely changed the conditions of access to knowledge. Within this framework it becomes even more important to find and to formulate a new settlement for intellectual property rights balancing contrasted rights. Owners of the old technology and policy makers have found two different solutions and remedies for intellectual property rights: legal and technological. When both remedies work together any rights that a consumer may have under copyright law could be replaced by a unilaterally defined contractual term and condition. To balance this inequity this article analyses different solutions under U.S. …

The Drm Dilemma: Re-Aligning Rights Under The Digital Millennium Copyright Act, Jacqueline D. Lipton

ExpressO

The Digital Millennium Copyright Act (‘DMCA’) prevents unauthorized copying and distribution of digital copyright works by regulating devices that can be used to circumvent Digital Rights Management (‘DRM’) measures that are used to restrict access to those works. A significant problem is that those devices, like many new technologies, have the potential to be used for both socially harmful and socially beneficial purposes. There is no obvious way for Congress to regulate circumvention devices to prevent the social harms, while at the same time facilitating the social benefits they might provide. Recent judicial interpretations of the DMCA have unsurprisingly erred …

Introduction: Special Project - Current Issues In Intellectual Property, W. Russell Taber

Vanderbilt Law Review

A single legal concept has produced some of the greatest achievements of the human mind: intellectual property. Thousands of years ago, Aristotle denounced the then novel notion of rewarding those who create inventions beneficial to the state. History has been kind to Aristotle, but not because of his insights on intellectual property. The Venetian Senate's passage of the 1474 Act marked the beginning of systematic patent protection on European soil. Along with blown glassware, Venice later exported its penchant for patent protection to the rest of Europe, including Great Britain by the mid- sixteenth century. During the same era, the …

Copyright "Deja Vu": A New Definition Of "Publication" Under The Copyright Act Of 1909, W. Russell Taber

Vanderbilt Law Review

"I have a dream," Dr. Martin Luther King, Jr., declared from the steps of the Lincoln Memorial during the March on Washington in 1963. About 200,000 people had gathered to listen to Dr. King's famous speech and to participate in the events of the day. Millions more witnessed the live broadcast on major television and radio stations. Others read the text of the speech in newspapers across the country.

Just over a month later, Dr. King applied for federal copyright protection for the speech. Under federal copyright law at the time, an owner who published a work prior to complying …

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.1 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 …

Special Project: Current Issues In Intellectual Property, W. Russell Taber

Vanderbilt Law Review

A single legal concept has produced some of the greatest achievements of the human mind: intellectual property. Thousands of years ago, Aristotle denounced the then novel notion of rewarding those who create inventions beneficial to the state. History has been kind to Aristotle, but not because of his insights on intellectual property. The Venetian Senate's passage of the 1474 Act marked the beginning of systematic patent protection on European soil. Along with blown glassware, Venice later exported its penchant for patent protection to the rest of Europe, including Great Britain by the mid- sixteenth century. During the same era, the …

American Corporate Copyright: A Brilliant, Uncoordinated Plan, Paul J. Heald

Scholarly Works

At first glance, American copyright law and policy seem to be dictated entirely by a monolithic block of corporate rightsholders. Over the last twenty years, powerful interests including Disney, the American Society of Composers, Authors, and Publishers (ASCAP), Microsoft, and the American Motion Picture Association (AMPA), have successfully lobbied Congress for copyright term extensions, copyright restoration, software anticircumvention legislation, protection against audio bootlegging, and a series of bilateral and international agreements designed to increase protection for American copyright owners overseas. Even the failure to protect databases in America, widely touted as a victory for the public interest, has been driven …

The Utility Of A Bright-Line Rule In Copyright Law: Freeing Judges From Aesthetic Controversy And Conceptual Separability In Leicester V. Warner Bros., John B. Fowles

ExpressO

No abstract provided.

God In The Machine: A New Structural Analysis Of Copyright’S Fair Use Doctrine, Matthew J. Sag

ExpressO

This article is a broad reconceptualization of the role of fair use within copyright law. Fair use is commonly thought of as just one of many exceptions limiting copyright. I show that fair use has actually enabled the expansion of copyright protection, through its structural role.

The structural role of fair use has two aspects. First, copyright necessarily must balance intellectual property incentives with the protection of free speech and innovation; fair use constitutes that balancing mechanism. By establishing the outer limits of copyright, fair use in fact enables an expansive interpretation of author’s rights within those bounds. Second, because …

Problems Of Anti-Circumvention Rules In The Dmca & More Heterogeneous Solutions, Yijun Tian

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Authorship, Ownership , And Control: Balancing The Economicc And Artistic Issues Raised By The Martha Graham Copyright Case, Sharon Connelly

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Problems Of Anti-Circumvention Rules In The Dmca & More Heterogeneous Solutions, Yijun Tian

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Who Owns The Internet? Ownership As A Legal Basis For American Control Of The Internet, Markus Muller

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Will Lessig Succeed In Challenging The Ctea, Post-Eldred, Matthew Dean Stratton

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Authorship, Ownership , And Control: Balancing The Economicc And Artistic Issues Raised By The Martha Graham Copyright Case, Sharon Connelly

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Will Lessig Succeed In Challenging The Ctea, Post-Eldred, Matthew Dean Stratton

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Who Owns The Internet? Ownership As A Legal Basis For American Control Of The Internet, Markus Muller

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Future Of Copyright, Lawrence B. Solum

Faculty Scholarship

Sometimes technological change is so profound that it rocks the foundations of an entire body of law. Peer-to-peer (P2P) filesharing systems - Napster, Gnutella, KaZaA, Grokster, and Freenet3 - are mere symptoms of a set of technological innovations that have set in motion an ongoing process of fundamental changes in the nature of copyright law. The video tape recorder begat the Sony substantial noninfringing use defense. The digital cassette recorder begat the Audio Home Recording Act. The internet begat the Digital Millennium Copyright Act. Napster begat Napster. We see the law morph right in front of our eyes, but its …

Keeping Score: The Struggle For Music Copyright, Michael W. Carroll

ExpressO

Inspired by the passionate contemporary debates about music copyright, this Article investigates how, when, and why music first came within copyright's domain. Although music publishers and recording companies are among the most aggressive advocates for strong copyright protection today, when copyright law was first invented in eighteenth-century England, music publishers resisted its extension to music. This Article sheds light on a series of early legal disputes concerning printed music that yield important insights into original understandings of copyright law and music's role in society. By focusing attention on this understudied episode, this Article demonstrates that the concept of copyright was …

An Umbrella Or A Canopy?: Why The 17 U.S.C. Section 512(A) Safe Harbor Should Be Read Broadly, Sven Skillrud

Marquette Intellectual Property Law Review

With technology constantly changing, the interaction between copyright law and technology is always at odds, especially since the evolution of the Internet. To keep up with the ever-changing Internet, Congress enacted the Digital Millennium Copyright Act; specifically, it created four safe harbors that are intended to protect entities from copyright infringement that qualify as online service providers. However, it seems that the courts have had trouble interpreting who is covered under these safe harbors, namely, as to what entities qualify under the first safe harbor "Transitory Digital Network Communications." There are only a few cases where entities have qualified under …

The Architectural Works Copyright Protection Act: Much Ado About Something?, Antoinette Vacca

Marquette Intellectual Property Law Review

The AWCPA has been in effect for thirteen years, enough time for an evaluation of its effect on those who have been working within its framework. Has the Architectural Works Copyright Protection Act of 1990 (AWCPA) met the public's interests by encouraging original and innovative design? U.S. intellectual property laws are founded on balancing benefit to the public with reward and incentive to the author, while the standards of protection under the Berne Convention are grounded in the principle that copyright is a natural right of the author. The AWCPA of 1990 adopted the Berne Standard of according protection to …

The Spawn Of Learned Hand-A Reexamination Of Copyright Protection And Fictional Characters: How Distinctly Delineated Must The Story Be Told?, Gregory S. Schienke

Marquette Intellectual Property Law Review

Fictional characters are the backbone of the multi-billion dollar entertainment industry. Since the early twentieth century, the owners of fictional characters have recognized that there is money to be made in derivative products featuring those characters and move swiftly to stop infringing use of those characters. Learned Hand, in passing, allowed that fictional characters could be protected through copyright law if the characters were distinctly delineated. Since then, the courts have created a piecemeal protective-strategy involving trademark and copyright law to protect fictional characters. The Seventh Circuit in Gaiman v. McFarlane, continued using the traditional analysis, that copyrightability for a …

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

Marquette Intellectual Property Law Review

This paper argues that it is time to replace the existing set of copyright rights by focusing on its true policy objectives. The paper identifies what is wrong with extant norms and spotlights the apparent chasm between the policy objectives and the norms. The paper proposes a new international copyright norm based on the Berne Convention's three-step test, in harmony with the U.S. fair use doctrine. The author suggests that fair use reflects an appropriate set of criteria to balance the rights of copyright holders and the needs and interests of users, which could serve as a basis to build …

"It's Mine! No, It's Mine! No, It's Mine!" Works-Made-For-Hire, Section 203 Of The Copyright Act, And Sound Recordings, Adam H. Dunst

Vanderbilt Journal of Entertainment & Technology Law

Under Section 203 of the 1976 Copyright Act, assignments of copyrights by authors after January 1, 1978, are subject to termination starting 35 years through 40 years after the date of the grant, regardless of any term stated in the agreement. Congress intended that authors have the opportunity to repossess copyrights and enjoy future rewards of their creative works at a point in time when they have a better sense of their works' values and more bargaining power. This "second bite at the apple" protects authors from transfers for which they were inadequately compensated. To protect authors' interests, the Copyright …