Intellectual Property Law Commons^™

Collective Management Of Copyright And Neighboring Rights In Canada: An International Perspective, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

It is a generally held view that copyright in civil law countries is a child of the French Revolution and should be considered an inalienable right of the author, a human right in other words. In fact, it is enshrined in the Universal Declaration of Human Rights of 1948. Granted, in several cases the economic component of the right is transferred to, e.g., a publisher or a producer, but it remains, at source, a right of the author, the creator of the protected work (or object of a related right). By contrast, one often hears that, in common law jurisdictions, …

Incentives To Create Under A "Lifetime-Plus-Years" Copyright Duration: Lessons From A Behavioral Economic Analysis For Eldred V. Ashcroft, Avishalom Tor, Dotan Oliar

Journal Articles

In this Article, we highlight for the first time some of the significant but hitherto unrecognized behavioral effects of copyright law on individuals' incentives to create and then examine the implications of our findings for the constitutional analysis of Eldred v. Ashcroft. We show that behavioral biases - namely, individuals' optimistic bias regarding their future longevity and their sub-additive judgments in circumstances resembling the extant rule of copyright duration - explain the otherwise puzzling lifetime-plus-years basis for copyright protection given to individual authors, and reveal how this regime provides superior incentives to create. Thus, insofar as the provision of increased …

Thoughts On Dastar From A Copyright Perspective: A Welcome Step Toward Respite For The Public Domain, Lynn Mclain

All Faculty Scholarship

Though other questions remain unresolved and other leaks unstemmed, Dastar is a welcome step towards regaining the public domain, and towards establishing that the confines of the public domain, with regard to nondeceptive reproduction of public domain works, and preparation of derivative works based upon them, must be delimited by only the copyright and patent laws.

This article will provide a background discussion of the copyright and patent schemes and their delineation of the public domain. It then will discuss the role of trademark law in that balance, and some of the case law regarding both § 43 of the …

Excuse And Justification In The Law Of Fair Use: Commodification And Market Perspectives, Wendy J. Gordon

Faculty Scholarship

Over twenty years ago, the Journal of the Copyright Society of the U.S.A. reprinted my article, "Fair Use as Market Failure" (82 Columbia Law Review 1600 (1982), available at: https://ssrn.com/abstract=3577724. That 1982 piece suggested that an underlying pattern governs the protean forms of "fair use", and I employed the notion of market failure to reveal and explain how the pattern functioned. Since then, some misunderstandings of my argument have arisen.

I am pleased to publish in this, the Fiftieth Anniversary issue of the Journal of the Copyright Society, a clarification – and partial amendment – of my position. As …

Authors, Publishers And Public Goods: Trading Gold For Dross, Wendy J. Gordon

Faculty Scholarship

The article seeks to clarify what is at stake - and what is not - in the litigation challenging the constitutional validity of the Sonny Bono Copyright Term Extension Act (CTEA). First, the article distinguishes between the CTEA's retrospective term extension of copyright term and the retrospective extensions enacted by prior Congresses. The article suggests that the CTEA provisions are constitutionally questionable in ways that earlier retrospective extensions may not have been. To hold the CTEA unconstitutional would not make all other term extensions vulnerable.

Second, the article shows how non-creative physical activities such as digitization and film preservation have …

Roundtable Panel Iii: Digital Audio, Michael Carlinsky, Steven Fabrizio, Katherine Forrest, Nic Garnett

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Roundtable Panel Ii: Digital Video, Andrew Appel, Jeffrey Cunard, Martin Garbus, Edward Hernstadt

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Keynote Address Digital Technology And Digital Piracy Issues, Jesse Feder

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Transmissions Of Music On The Internet: An Analysis Of The Copyright Laws Of Canada, France, Germany, Japan, The United Kingdom, And The United States, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

This Article examines the status of copyright laws in several countries as they pertain to transmissions of music on the Internet. Because the exact legal ramifications of music transmissions over the Internet are currently unclear, the Author compares copyright laws of six major markets and examines the potential application of the copyright laws and other rights that may apply. The Article also discusses rules concerning which transborder transmissions are likely to be covered by a country's national laws, as well as specific rules applying to the liability of intermediaries. Next, the Article summarizes the comparative findings and discusses the relevant …

Piracy, Prejudice, And Perspectives: An Attempt To Use Shakespeare To Reconfigure The U.S.-China Intellectual Property Debate, Peter K. Yu

Articles

No abstract provided.

Reforming The Protection Of Intellectual Property: The Case Of China And Taiwan In Light Of Wto Accession, Andy Y. Sun

Maryland Series in Contemporary Asian Studies

No abstract provided.

On-Line Tutorial Project: Intellectual Property In E-Commerce, William J. Murphy

Law Faculty Scholarship

Copyrights, Trademarks and Patents make up most of the area of law known as Intellectual Property. Intellectual Property's importance in Electronic Commerce is difficult to overstate. The Internet has been defined as a global network of networks through which computers communicate by sending information in packets, and each network consists of computers connected by cables or wireless links. It is the Intellectual Property laws of Copyright, Trademark and Patents that are attempting to harmonize the effects that E-Commerce and the Internet have had on the individual's ability to access and use this information. It should be remembered that most countries …

The United States Court Of Appeals For The Federal Circuit: The Promise And Perils Of A Court Of Limited Jurisdiction , Randall R. Rader

Marquette Intellectual Property Law Review

Honorable Randall Rader, of the United States Court of Appeals for the Federal Circuit discusses current criticisms of the Federal Circuit and the speed of which the Circuit sets precedent. Before addressing these issues, Judge Rader posits a belief that the standard by which the Circuit is being judged is incorrect. Judge Rader's speech gives a foundation by which a correct standard should be exacted, examples of the current atmosphere leading to the precedents being set, and generally addresses why the Federal Circuit is fundamentally unique from other jurisdictions.

Source Code Escrow: An Exercise In Futility?, Jonathan L. Mezrich

Marquette Intellectual Property Law Review

Jonathan Mezrich argues that as businesses become more dependent upon computer software, they will also seek a means of protection for their investment in the software they purchase. Currently, a popular means of protection is through source code escrow. However, despite the current popularity of escrow accounts, Mr. Mezrich writes that these mechanisms may in fact not actually be necessary. He focuses on several key points that demonstrate this point including the life of the protected software, infrequency of escrow releases, and the move to open source applications. He also examines deficiencies of confidentiality, limited liability and indemnity as they …

Give The Smaller Players A Chance: Shaping The Digital Economy Through Antitrust And Copyright Law, Douglas L. Rogers

Marquette Intellectual Property Law Review

In this article, Mr. Rogers examines the tension in the digital world between the application of (a) antitrust law, which promotes competition and (b) copyright law, which limits competition in order to promote progress in science and art. He reviews the prohibitions against the exercise of monopoly power in section 2 of the Sherman Act (15 U.S.C.) and proposes a test for anti-competitive conduct that includes close scrutiny of the contract restrictions and marketing practices of those that have significant market power. Arguing that product design decisions are not immune from antitrust review, he proposes examining alleged efficiency justifications for …

"The Rich Man's Eight Track": Mp3 Files, Copyright Infringement, And Fair Use , Kathryn I. Mullen

Marquette Intellectual Property Law Review

An objective of copyright law is to promote creativity and the dissemination of ideas by granting artists, writers, and other creators of artistic works a limited monopoly in their works. MP3 files consist of a digital audio compression algorithm that makes an audio file smaller without reducing sound quality. One problem created by this technology is that when combined with the Internet, millions of people can simultaneously access, reproduce and distribute copyrighted works in digitized form without authorization. Under this premise, Ms. Mullen presents two case studies concerning MP3.com and Napster, in which she relates their various characteristics to copyright …

Digital Copyright, By Jessica Litman , J. Ryan Miller

Marquette Intellectual Property Law Review

Jessica Litman's book focuses on the Copyright Act, in relation to modern entertainment technology. For example, each time an image from the Internet is viewed through a personal computer, the viewer has reproduced the original image, because a computer's RAM makes a temporary copy in order to allow the image to be viewed. The entertainment industry's concern about potential copyright infringement resulted in the enactment of the Digital Millennium Copyright Act. Professor Litman provides a history of the negotiation and lobbying that created the Copyright Act of 1976, and then provides a commentary regarding Napster and the expanding amount of …

Changing Horses In Mid-Stream: The Copyright Office's New Rule Makes Broadcasters Pay For "Streaming" Their Signals Over The Internet, Samuel Fifer, Gregory R. Naron

Vanderbilt Journal of Entertainment & Technology Law

With traditional, over-the-air broadcasts, radio stations do not have to start paying license fees to rights holders if they get a bigger transmitter or technology allows their signal to reach more listeners. That much, not even the RIAA will dispute. So why should it matter if stations use the Internet to reach additional listeners? The law shouldn't be interpreted to discourage radio stations from using new Internet technology to do the same thing they're doing now--especially since Congress itself expressly said it did not want to "[hamper] ... new technologies" or "impose new and unreasonable burdens" on broadcasters. And make …

Introduction: From Sheet Music To Mp3 Files—A Brief Perspective On Napster, Harold R. Weinberg

Law Faculty Scholarly Articles

The Napster case is the current cause celebre of the digital age. The story has color. It involves music-sharing technology invented by an eighteen-year-old college dropout whose high school classmates nicknamed him "The Napster" on account of his perpetually kinky hair. The story has drama. Depending on your perspective, it pits rapacious big music companies against poor and hardworking students who just want to enjoy some tunes; or it pits creative and industrious music companies seeking a fair return on their invested effort, time, and money against greedy and irreverent music thieves. And the case has importance. Music maybe intellectual …

Authorship, Dominance, And The Captive Collaborator: Preserving The Rights Of Joint Authors, Mary Lafrance

Scholarly Works

For copyright purposes, determining whether a work has a single author or joint authors is important for a variety of reasons. Perhaps the most significant legal consequence of joint authorship is joint ownership, under which the authors enjoy equal and undivided ownership of the copyright, allowing each to exploit the work freely, subject to a duty to account to the others for a ratable share of the exploitation profits. Absent an agreement to the contrary, each author of a joint work has an equal claim to those profits and an equal right to exploit the work, even if the authors' …

The Uncertain Future Of Fair Use In A Global Information Marketplace, Marshall Leaffer

Articles by Maurer Faculty

The author of this article forecasts an increasingly troubled future, if not the demise of the doctrine of fair use in copyright law. Legal developments, both at home and abroad, driven by technological change, and the push toward the international harmonization of legal norms, threaten the very survival of fair use. Given these realities the doctrine will, of necessity, be reconceptualized Although fair use values will always be inscribed in copyright law, these values will have their practical manifestation in decentralized form, and effectuated, in large part, through industry agreement. They will exist in conjunction with certain bright line exceptions …

Not So Different: Tangible, Intangible, Digital, And Analog Works And Their Comparison For Copyright Purposes, I. Trotter Hardy

Faculty Publications

No abstract provided.

Chillin' Effect Of Section 506: The Battle Over Digital Sampling In Rap Music, Ronald Gaither

Vanderbilt Journal of Entertainment & Technology Law

Digital samples are to rap music as precedent is to the practice of law. Lawyers, mindful of the principle of stare decisis, mine court opinions for arguments to support legal theories. Similarly, rappers use the lyrics and musical arrangements found in previously recorded works to spin out new and creative pieces. But where-as no one worries when a lawyer quotes pieces of old case law to fashion her arguments in a novel case, rappers' heavy reliance on digital sampling routinely puts their community front and center in a debate over copyright infringement...

Considering the severity of most criminal penalties for …

Transmissions Of Music On The Internet, Daniel J. Gervais

Vanderbilt Journal of Transnational Law

This Article examines the status of copyright laws in several countries as they pertain to transmissions of music on the Internet. Because the exact legal ramifications of music transmissions over the Internet are currently unclear, the Author compares copyright laws of six major markets and examines the potential application of the copyright laws and other rights that may apply. The Article also discusses rules concerning which transborder transmissions are likely to be covered by a country's national laws, as well as specific rules applying to the liability of intermediaries. Next, the Article summarizes the comparative findings and discusses the relevant …

Protecting The Performers: Setting A New Standard For Character Copyrightability, Mark Bartholomew

Journal Articles

Copyright law protects expressions of ideas, but not the idea itself. Legal disputes over characters arise in the continuum between an idea for a character that has not been expressed at all, and an idea that has been given complete form and shape. The inconsistent common law tests developed to assess character copyrightability demonstrate the difficulty in pinpointing where the dividing line between an undeveloped idea and a sufficiently expressed character should be set. This Article offers a new paradigm for determining character copyrightability, particularly in the case of characters shaped through live performance, that tracks the Hegelian concept of …

Digital Broadcasting: The Cost Of Copyright, Journal Staff

Vanderbilt Journal of Entertainment & Technology Law

Music copyright issues pervade the Internet these days, but few have roots as far back as 1915. Since that time, radio broadcasters and copyright owners have found themselves embroiled in a conflict over the extent to which copyright law should and can dictate the terms and cost of broadcasting music. Advances in dig- ital transmission technology, followed closely by the introduction of two important legislative enactments, have kept the debate fresh in recent years. Now, an inter- pretative ruling by the Copyright Office as to the applicability of the latter to the former threatens to extend the dispute well into …

Fair Use And The Digital Distribution Of Music - Recording Industry Association Of America V. Napster, Inc. (A Comparative Analysis Of A Restraint On Copyright In The United States Of America And Trinidad And Tobago), Michelle Lisa Alexander

LLM Theses and Essays

The purpose of this thesis is to undertake a critical analysis of the Napster judgment and its treatment of the doctrine of fair use, to determine whether the doctrine can retain its integrity in the internet age. It is proposed that as technology advances, U.S. policymakers are moving away from the constitutional objectives of U.S. copyright law and are equating copyright interests with property rights, to the detriment of noncommercial users of copyrighted works. Further, it is suggested that the decision in the Napster litigation is important for the evolving landscape of U.S. copyright law, as it signals the difficulty …

Market Hierarchy And Copyright In Our System Of Free Expression, Neil W. Netanel

Vanderbilt Law Review

If trends of the past two decades persist, a vast inequality of wealth may well become a fundamental, defining characteristic of political and social life in many Western democracies, particularly the United States.' Among its potentially pernicious effects, massive wealth disparity threatens the integrity of the democratic process. Liberal democracy aspires to political equality, which demands that opportunities to acquire and assert political power be widespread and broadly distributed. Political equality does not require economic equality. But political equality may be undermined by severe disparities of wealth. Absent preventive regulation, private wealth buys political power. It enables those with greater …

Copyright And The Perfect Curve, Julie E. Cohen

Vanderbilt Law Review

Everyone agrees that the purpose of the copyright system is to promote progress.' At the same time, though, skepticism about the law's ability to define the substance of progress runs deep within copyright case law and theory. Legal decisionmakers and scholars have quite properly doubted their own ability to evaluate artistic or literary merit, and have worried that efforts to do so would result in an inappropriately elitist and conservative standard. In addition, there is room for substantial debate about whether the metaphor of forward motion leaves out other important measures of what "progress" is or might be. This agnosticism …

Comment On "Lessons From Studying The International Economics Of Intellectual Property Rights", Paul Goldstein

Vanderbilt Law Review

Copyright is the "dog that didn't bark" in Keith Maskus's paper, "Lessons from Studying the International Economics of Intellectual Property Rights." Like virtually every other economic study of intellectual property and trade, the Maskus paper confines its examples and analysis to the industrial side of intellectual property-mainly patents and know-how-and leaves the authorial side-copyright-untouched. As a small step toward repairing this imbalance, and toward opening a corner of policy inquiry that has so far been largely unexamined, I would like here to make a few observations on copyright and trade in developing economies.

The regular omission of copyright from economic …