Intellectual Property Law Commons^™

A Modern Copyright Framework For Artificial Intelligence: Ip Scholars' Joint Submission To The Canadian Government Consultation, Carys Craig, Bita Amani, Sara Bannerman, Céline Castets-Renard, Pascale Chapdelaine, Lucie Guibault, Gregory R. Hagen, Cameron J. Hutchison, Ariel Katz, Alexandra Mogyoros, Graham Reynolds, Anthony D. Rosborough, Teresa Scassa, Myra Tawfik

Reports & Public Policy Documents

In response to the Canadian government consultation process on the modernization of the copyright framework launched in the summer 2021, we hereby present our analysis and recommendations concerning the interaction between copyright and artificial intelligence (AI). The recommendations herein reflect the shared opinion of the intellectual property scholars who are signatories to this brief. They are informed by many combined decades of study, teaching, and practice in Canadian and international intellectual property law.

In what follows, we explain:
- The importance of approaching the questions raised in the consultation with a firm commitment to maintaining the appropriate balance of rights …

Saving Substantial Similarity, Daryl Lim

Faculty Scholarly Works

Substantial similarity, an analysis of the similarity between two works, is the fulcrum of copyright infringement. Recent cases involving Led Zeppelin's signature song “Stairway to Heaven,” the award-winning movie “The Shape of Water,” and Google and Oracle's dispute over computer code all required courts to grapple with this fundamental analysis. This Article reveals that today's copyright plaintiffs have only a one-in-ten chance of winning--the worst in a century--and also discusses the cause of this trend--defendants' devastatingly effective use of pretrial motions and the rise of lawsuits against nonrival defendants. Scholarly debates on substantial similarity typically revolve around the works of …

Golan V Holder’S Impact On Orchestra Performance Programming: Annotated Bibliography, Craig M. Winston

Musicology and Ethnomusicology: Student Scholarship

This project will examine how changes in copyright law enacted with the Supreme Court’s 2012 decision on Golan v Holder affect the performance programming of American symphony orchestras. The court’s decision brought many previously public-domain, foreign works under copyright protections in accordance with the Uruguay Rounds Agreement Act; among the musical works were frequently performed pieces by composers such as Prokofiev, Rachmaninoff, and Stravinsky. The result is that previously free or low-cost works would now have to be licensed or rented for performance at great expense to the performing group. I will seek to test a hypothesis proposed by legal …

Creating An Open Works Workshop, Jenelys Cox, Nicolas Parés

University Libraries: Staff Scholarship

Learn how to use Creative Commons licensing, choose a hosting platform, and remix open resources. This workshop explores open resource repositories, examines Creative Commons licenses, remixes materials into a group creative work, and walks participants through considerations when hosting works. This workshop supplies valuable, hands-on experience for participants.

“Ooh It Makes Me Wonder”: Do The Courts Finally Understand The Problems With Copyright Infringement And Pop Music?, Kate Camarata

Seattle University Law Review

The interaction between music and law is unique to copyright litigation. Music is “commonly regarded as a rule-free zone,” whereas the law is structured and, in essence, the “origin for rules.” This Note explores the inherent weaknesses with the substantial similarity test for copyright infringement as it relates to popular music through the lens of the recent Ninth Circuit case, Skidmore v. Led Zeppelin.

Part I of this Note reviews the history and purpose of copyright protection as well as explains the current tests utilized by courts in copyright infringement cases. Additionally, it will also show the difficulties of …

Sounds Of Science: Copyright Infringement In Ai Music Generator Outputs, Eric Sunray

Catholic University Journal of Law and Technology

The music business is no stranger to disruptive technology. The industry’s apparent comeback from the devastating downturn caused by illegal file sharing seems to have arrived just in time for what may be an even more disruptive technological phenomenon: artificial intelligence (“AI”). Much has been said about the implications of AI-generated music, ranging from issues of ownership, to rights of publicity. However, there has been surprisingly little discussion of infringement in the AI systems’ outputs. By examining the functionality of AI music generators through the lens of de minimis use case law, this paper will explain how the outputs of …

Perma.Cc And Web Archival Dissonance With Copyright, Paul D. Callister

Faculty Works

Harvard’s Perma.cc offers the solution to linkrot—the phenomenon that citations in academic journals to web materials disappears with the passage of time, resulting in “broken links” and disappearance of material from the Web.

This article will describe Perma.cc and outline the kinds of copyright issues that may arise, including heavy use of copyright statutes and caselaw. It will examine the kind of preservation use of copyrighted materials, with reference to fair use, and the library prerogatives as exceptions to the exclusive rights of authors of materials found on the Web. This analysis includes detailed analysis of “transformative use” and the …

Fairness, Copyright, And Video Games: Hate The Game, Not The Player, Shani Shisha

Fordham Intellectual Property, Media and Entertainment Law Journal

Creative communities often rely on social norms to regulate the production of creative content. Yet while an emerging body of literature has focused on isolated accounts of social norms operating in discrete, small-scale creative industries, no research to date has explored the social norms that pervade the world’s largest content microcosm—the sprawling video game community.

Now a veritable global phenomenon, the video game industry has recently grown to eclipse the music and motion picture industries. But despite its meteoric rise, the video game industry has provoked little attention from copyright scholars. This Article is the first to explore the shifting …

The Use Of Technical Experts In Software Copyright Cases: Rectifying The Ninth Circuit’S “Nutty” Rule, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

Courts have long been skeptical about the use of expert witnesses in copyright cases. More than four decades ago, and before Congress extended copyright law to protect computer software, the Ninth Circuit in Krofft Television Productions, Inc. v. McDonald’s Corp. ruled that expert testimony was inadmissible to determine whether Mayor McCheese and the merry band of McDonald’s characters infringed copyright protection for Wilhelmina W. Witchiepoo and the other imaginative H.R. Pufnstuf costumed characters. Since the emergence of software copyright infringement cases in the 1980s, substantially all software copyright cases have permitted expert witnesses to aid juries in understanding software code. …

Conundra Of The Berne Convention Concept Of The Country Of Origin, Jane C. Ginsburg

Faculty Scholarship

This essay explores one of the most important, but occasionally intractable, issues under the Berne Convention, the concept of Country of Origin. Article 5(4) of that treaty defines a work’s country of origin, but leaves out several situations, leaving those who interpret and apply the treaty without guidance in ascertaining the country of origin. I will call those situations the “Conundra of the country of origin,” and will explore two of them here. First, what is the country of origin of an unpublished work whose authors are nationals of different countries? Second, what is the country of origin of a …

The Right Of Reattribution, Brian L. Frye

Law Faculty Scholarly Articles

Usually, authors love their works as their children: fiercely and unconditionally. Indeed, many authors refer to their works as their “children,” and some show far more solicitude for their aesthetic children than their actual ones. Of course, authors can also be cruel to their works. As William Faulkner famously observed, “In writing you must kill all your darlings.” But even such merciless culling doesn’t prevent authors from loving what survives. If anything, their love only deepens with each sacrifice.

But even the filial bond can be broken. Many disappointed parents have disowned their prodigal children. Sometimes the relationship can be …

A Tale Of Two Interoperabilities; Or, How Google V. Oracle Could Become Social Media Legislation, Charles Duan

Cardozo Law Review de•novo

The Supreme Court's recent decision in Google v. Oracle shares a perhaps unexpected connection with recent legislative proposals to enhance social media competition. At first glance they are seemingly unrelated: the former deals with copyright protection in certain portions of software code, while the latter relates to interconnection between dominant online platforms and their competitors. Yet they are closely intertwined, such that a competitive platform environment cannot be fully achieved without addressing lingering questions in Google. As a result, lawmakers ought to be motivated to address software copyrights and related matters as part of their efforts to improve competition among …

We're All Pirates Now: Making Do In A Precarious Ip Ecosystem, Jessica Silbey

Faculty Scholarship

Fifteen years after the Piracy Paradox explained how most anti-copying protection is unnecessary for a thriving fashion industry, we face another piracy paradox: with broader and stronger IP laws and a digital economy in which IP enforcement is more draconian than ever, what explains the ubiquity of everyday copying, sharing, re-making and re-mixing practices that are the life blood of the internet's expressive and innovative ecosystems? Drawing on empirical data from a decade of research, this short essay provides two examples of this "new piracy paradox": a legal regime that ostensibly punishes piracy in a culture in which it is …

Is There A New Extraterritoriality In Intellectual Property?, Timothy R. Holbrook

Faculty Articles

This Article proceeds as follows. Part I discusses the state of the law of extraterritoriality in copyright, trademark, and patent, as it stood before the Supreme Court’s recent intervention. This review demonstrates that all three disciplines were treating extraterritoriality very differently, and none were paying much attention to the presumption against extraterritoriality. Part II reviews a tetralogy of recent Supreme Court cases, describing the Court’s attempt to formalize its approach to extraterritoriality across all fields of law. Part III analyzes the state of IP law in the aftermath of this tetralogy of extraterritoriality cases. It concludes that there has been …

Substantial Similarity Substantial Similarity’S Silent Death, Daryl Lim

Faculty Scholarly Works

Copyright litigation involving hit songs like Robin Thicke’s “Blurred Lines,” Justin Bieber and Usher’s “Somebody to Love,” and Led Zeppelin’s “Stairway to Heaven” caused many in the music industry to vex over the line between homage and infringement. When are the two works too similar? To many courts and scholars, substantial similarity is “bizarre,” “ad hoc,” and “a virtual black hole in copyright jurisprudence.” Every creative work borrows some inspiration from other works, whether copyrighted or not. Judging when defendants appropriated too much is an inherently opaque and subjective enterprise, but unraveling its mysteries is critical for the flourishing of …

Literary Landlords In Plaguetime, Brian L. Frye

Law Faculty Scholarly Articles

The coronavirus pandemic has affected our lives in countless ways. One of its unfortunate effects was the unavoidable closure of public libraries. Many people rely on public libraries for many different things, including free access to books. When public libraries closed, many people lost access to books, especially new books.

In response, the Internet Archive created the National Emergency Library to make digital copies of books more accessible. The Internet Archive's Open Library is a free digital lending library founded in 2006 that provides digital access to the books in its collection. Currently, the Open Library holds about 4 million …

Conceptual Copyright, Brian L. Frye

Law Faculty Scholarly Articles

Conceptual art is art that consists of ideas, not their realization. It tests the

boundaries of art, by eliminating the art object entirely. Legal scholars should be

interested in conceptual art because it can help them test the boundaries of legal

doctrines and their justifications. I created a work of conceptual art that reflects

on both the securities laws and copyright doctrine. Among other things, I asked

the SEC and the Copyright Office to opine on that work, with limited success. I

use my experience to reflect on how conceptual art can illuminate our

understanding of the law.

A Textualist Interpretation Of The Visual Artists Rights Act Of 1990, Brian L. Frye

Law Faculty Scholarly Articles

For numberless generations, jurisprudes waged total war in the

conflict among textualism, intentionalism, and purposivism.

Textualists insisted that courts must interpret statutes based on the

meaning of their text, intentionalists insisted on the intention of the

legislature, and purposivists insisted on the purpose of the statute.

Eventually, textualism prevailed. Courts universally recognize

that they are obligated to interpret statutes in light of their text, or

at least pretend that the text of the statute determined their

interpretation. And the few remaining heretics are swiftly identified

and corrected by their superiors. As Justice Kagan famously

observed, “We’re all textualists now.” Whether …

A License To Plagiarize, Brian L. Frye

Law Faculty Scholarly Articles

Since time immemorial, authors have wanted to own various kinds of

exclusive rights in the works they create. Curiously, the rights authors want

to own at any particular point in time tend to reflect the nature of the market

for the works they create. The first exclusive right authors wanted was attribution.

In classical Greece, philosophers accused each other of copying

ideas without attribution. The Roman poet Martial coined the term plagiarius

to criticize other poets for passing off his poems as their own. Even

medieval Irish poets observed plagiarism norms that prohibited copying

without attribution. In all of these …

Payin’ The Price To Grab A Slice…Of Music! A Guide To Music Licensing For Businesses, Nila Jackson

Cybaris®

This paper provides information that may be useful to people seeking to acquire music licenses for their places of business and is primarily focused on licensing for food and drink establishments. However, other business types that use live or recorded music in their establishments may find the information useful as well. The purpose of this paper is to provide a brief history of copyright law, and an overview of music licensing to give business owners a better understanding of copyright as it relates to public performance.

Independent Filmmaking In The Final Frontier: Intellectual Property Issues With Making Independent Films In Space, Jesse Green

Cybaris®

No abstract provided.

The Sword Of Damocles: How The Fair Use Defense Application Affects The Computer Programming Area, Ziyi Gao

Touro Law Review

No abstract provided.

Submission To Canadian Government Consultation On A Modern Copyright Framework For Ai And The Internet Of Things, Sean Flynn, Lucie Guibault, Christian Handke, Joan-Josep Vallbé, Michael Palmedo, Carys Craig, Michael Geist, Joao Pedro Quintais

Reports & Public Policy Documents

We are grateful for the opportunity to participate in the Canadian Government’s consultation on a modern copyright framework for AI and the Internet of Things. Below, we present some of our research findings relating to the importance of flexibility in copyright law to permit text and data mining (“TDM”). As the consultation paper recognizes, TDM is a critical element of artificial intelligence. Our research supports the adoption of a specific exception for uses of works in TDM to supplement Canada’s existing general fair dealing exception.

Empirical research shows that more publication of citable research takes place in countries with “open” …

Introducing The Copyright Anxiety Scale, Amanda Wakaruk, Céline Gareau-Brennan, Matthew Pietrosanu

Copyright, Fair Use, Scholarly Communication, etc.

Navigating copyright issues can be frustrating to the point of causing anxiety, potentially discouraging or inhibiting legitimate uses of copyright-protected materials. A lack of data about the extent and impact of these phenomena, known as copyright anxiety and copyright chill, respectively, motivated the authors to create the Copyright Anxiety Scale (CAS). This article provides an overview of the CAS’s development and validity testing. Results of an initial survey deployment drawing from a broad cross-section of respondents living in Canada and the United States (n = 521) establishes that the phenomenon of copyright anxiety is prevalent and likely associated with …

Who Killed The Radio Star? How Music Blanket Licensing Distorts The Production Of Creative Content In Radio, Ariel Katz, Eden Sarid

American University Law Review

According to popular and scholarly belief, video killed the radio star. The golden age of radio, culminating in the 1930s and 1940s, was gone with the rise of television in the 1950s and 1960s. In this Article, we advance the claim that television’s role in the “death” of the radio star has been more limited than commonly believed. A major culprit, we argue, is the common licensing practice of musical content for broadcasting, or more precisely, the blanket license issued by copyright collective management organizations (CMOs). By setting a zero marginal price for broadcasting additional songs from the CMO’s repertoire, …

That's Not Fair Use: Why Rule 68 Copyright Defendants Canno Recover Post-Offer Attorney's Fees, Ryan Kaiser

American University Law Review

Federal Rule of Civil Procedure 68 (Rule 68) is a cost-shifting rule that allows a non-prevailing defendant who made an offer of judgment more favorable than the final judgment to recover costs incurred from the point the offer was made. Until the mid-1980s, whether the rule could apply to the attorney’s fees was the source of much debate. In 1985, the U.S. Supreme Court provided a partial answer when it decided Marek v. Chesny, holding that Rule 68 operates to preclude a civil rights plaintiff from recovering post-offer attorney’s fees. The Court stated that Rule 68 costs include all costs …

A Tale Of Two Interoperabilities; Or, How Google V. Oracle Could Become Social Media Legislation, Charles Duan

Scholarly Articles in Law Reviews & Journals

The Supreme Court'srecent decision in Google LLC v. Oracle America, Inc. has provided the latest word on an issue that many have described as "interoperability," and it comes at a time when lawmakers around the world are debating a policy called "interoperability" with respect to majorInternetplatforms. At first glance, these two similarly named policy conversations copyright protection of software interfaces and interconnection among competing Internet platforms, respectively have little to do with each other. Yet they are vitally intertwined: the activities and issues featured in Google are so closely linked to the questions of digital competition that interoperability reforms directed …

The Corruption Of Copyright And Returning It To Its Original Purposes, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

Since its inception, Copyright has had two purposes: the private interest of the author in being paid for her work and the public interest served by the dissemination of these works. Within the last two decades, though, some industries have systematically undermined both of those interests, redirecting the benefits of copyright towards themselves instead of the intended beneficiaries. This paper looks at the book, music, and entertainment industries, examines how copyright has been used to suppress the uses it was intended to foster, and explores ongoing and proposed avenues for course correction.

Restoring The Balance Of Copyright: Antitrust, Misuse, And Other Possible Paths To Challenge Inequitable Licensing Practices, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

Libraries’ purposes of ensuring access to and preservation of information have been compromised as licensing increasingly replaces ownership. This article outlines various novel legal strategies that libraries could use to restore copyright’s intended balance, including antitrust, preemption, misuse, and unconscionability.

Copyright And Disability, Blake E. Reid

Publications

A vast array of copyrighted works—books, video programming, software, podcasts, video games, and more—remain inaccessible to people with disabilities. International efforts to adopt limitations and exceptions to copyright law that permit third parties to create and distribute accessible versions of books for people with print disabilities have drawn some attention to the role that copyright law plays in inhibiting the accessibility of copyrighted works. However, copyright scholars have not meaningfully engaged with the role that copyright law plays in the broader tangle of disability rights.