Intellectual Property Law Commons^™

U.S. State Copyright Laws: Challenge And Potential, Marketa Trimble

Scholarly Works

With copyright law in the United States lying primarily in the realm of federal law, the laws of the U.S. states concerning copyright do not typically attract significant attention from scholars, practitioners, and policy makers. Some recent events have drawn attention to state copyright laws – for example, litigation against a satellite radio provider for infringement of state common-law public performance rights in pre-1972 sound recordings. However, in general, state copyright laws remain largely in the shadow of federal copyright law, and state law is typically not viewed as a particularly useful vehicle for pursuing the policies that copyright law …

Software's Copyright Anticommons, Clark D. Asay

Faculty Scholarship

Scholars have long assessed “anticommons” problems in creative and innovative environments. An anticommons develops when an asset has numerous rights holders, each of which has a right to prevent use of the asset, but none of which has a right to use the asset without authorization from the other rights holders. Hence, when any one of those rights holders uses its rights in ways that inhibit use of the common asset, an anticommons may result.

In the software world, scholars have long argued that anticommons problems arise, if at all, because of patent rights. Copyright, on the other hand, has …

The Case For Eliminating Patent Law's Inequitable Conduct Defense, Eric E. Johnson

Faculty Articles

This paper argues for the elimination of the judicially crafted inequitable conduct defense, which will invalidate a patent upon the defendant’s showing that the patent was obtained by deceiving the patent office. Inequitable conduct commonly comes up as an accusation that the patentee, when applying for her or his patent, failed to live up to a duty of disclosure and candor. This duty and the inequitable conduct doctrine’s enforcement of it are meant to help avoid the issuance of undeserved patents, which would unfairly restrict the rights of the public. Unfortunately, in the real world, the inequitable conduct defense can …

How Photographs Infringe, Terry S. Kogan

Vanderbilt Journal of Entertainment & Technology Law

Courts and commentators have lavished attention on the question of what makes a photograph original and entitled to copyright protection. Far less attention has been devoted to the issue of how photographs infringe. This is the first Article to systematically explore the different ways in which a photograph can steal intellectual property. Photographs can infringe in two ways: by replication and by imitation. A photograph infringes by replication when, without permission, a photographer points her camera directly at a copyright-protected work--a sculpture, a painting, another photograph--and clicks the shutter. A photograph can also infringe by imitation. In such cases, the …

Humanizing Intellectual Property: Moving Beyond The Natural Rights Property Focus, J. Janewa Osei-Tutu

Vanderbilt Journal of Entertainment & Technology Law

This Article compares the natural rights property framework with the international human rights framework for intellectual property. These two frameworks share a common theoretical basis in the natural rights tradition but appear to lead to conflicting outcomes. Proponents of natural rights to intellectual property tend to support more expansive intellectual property protections. Yet, advocates of a human rights approach to intellectual property contend that human rights will have a moderating influence on intellectual property law. This Article is among the first scholarly works to explore the apparent conflict between these two important frameworks for intellectual property. It concludes that a …

Copyright, Jane C. Ginsburg

Faculty Scholarship

This chapter o􀁼ers an overview of copyright in general in common law and civil law countries, with an emphasis on the United States (US) and the European Union (EU). It addresses the history and philosophies of copyright (authors’ right), subject matter of copyright (including the requirement of 􀁿xation and the exclusion of “ideas”), formalities, initial ownership and transfers of title, duration, exclusive moral and economic rights (including reproduction, adaptation, public performance and communication and making available to the public, distribution and exhaustion of the distribution right), exceptions and limitations (including fair use), and remedies. It also covers the liability of …

The Impact Of Intellectual Property On Provincial Unemployment Rates In South Korea, Soon Ho Shin

MPA/MPP/MPFM Capstone Projects

Intellectual property is drawing attention as an important policy tool to lower the unemployment rate in low-growth economies. The Korean Intellectual Property Office (KIPO) provides services that facilitate companies to effectively create intellectual property by operating local intellectual property support centers in connection with local governments. In this context, this research examine how the differences of intellectual property registration affect provincial unemployment rates by analyzing 10 years (2006-2015) of panel data with a fixed-effects regression model. According to my estimation results, intellectual property registrations have a statistically significant impact on provincial unemployment rates in South Korea. Since the reduction of …

Trust: A Model For Disclosure In Patent Law, Ari Ezra Waldman

Articles & Chapters

How to draw the line between public and private is a foundational, first-principles question of privacy law, but the answer has implications for intellectual property, as well. This project is the first in a series of papers about first-person disclosures of information in the privacy and intellectual property law contexts, and it defines the boundary between public and non-public information through the lens of social science — namely, principles of trust.

Patent law’s “public use” bar confronts the question of whether legal protection should extend to information previously disclosed to a small group of people. I present evidence that shows …

The Rcep And Trans-Pacific Intellectual Property Norms, Peter K. Yu, Peter K. Yu

Vanderbilt Journal of Transnational Law

This Article examines the Regional Comprehensive Economic Partnership (RCEP) with a focus on the intellectual property norms that it seeks to develop. The first half of the Article focuses on the RCEP Agreement as a mega-regional agreement. It begins by briefly discussing the historical origins of the RCEP. It then explores three possible scenarios in which the RCEP Agreement will help shape trade and intellectual property norms in the Asia-Pacific region. Specifically, the Article evaluates the scenarios in which the agreement will function as a rival pact, a building block, and an alternative path. The second half of this Article …

Globalizing Property Law: An Institutional Analysis, Amnon Lehavi

Vanderbilt Journal of Transnational Law

This Article identifies the key role that institutions play in moving toward an effective cross-border regime in property law. Property is based on an in rem principle, which should provide a single system for ranking rights, powers, and priorities in assets that applies to all interested parties. In a global context, this feature of property law requires a cross-border legal ordering by an array of domestic and supranational institutions: legislative, administrative, and adjudicative.

The Article argues that the present fragmentation of property norms across national borders, and the incompleteness of supranational institutions that deal with property law, may place limits …

The Commercial Appropriation Of Frame: A Cultural Analysis Of Right Of Publicity And Passing Off, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

Over several centuries, the rhetoric of 'gap filling' has often been invoked to naturalise expansions of intellectual property ("IP") rights-copyright term extension, the patenting of life forms, trademark disparagement, and so forth. The ready pragmatism of the phrase has definite audience appeal, making big changes sound like straightforward responses to external conditions-rather than choices about how to draw the line between private ownership and public discourse. We know, however, that once filled, 'gaps' tend to stay filled. Retrospective debates about the wisdom of such decisions tend to be (both literally and figuratively) of merely academic interest. So what is most …

Criminal Trademark Enforcement And The Problem Of Inevitable Creep, Mark P. Mckenna

Journal Articles

This Article, delivered as the 2017 Oldham Lecture at the University of Akron School of Law, focuses on the federal Trademark Counterfeiting Act (TCA), the primary source of federal criminal trademark sanctions. That statute was intended to increase the penalties associated with the most egregious form of trademark infringement — use of an identical mark for goods identical to those for which the mark is registered and in a context in which the use is likely to deceive consumers about the actual source of the counterfeiter’s goods. The TCA was intended to ratchet up the penalties associated with counterfeiting, but …

What's In, And What's Out: How Ip's Boundary Rules Shape Innovation, Mark P. Mckenna, Christopher J. Sprigman

Journal Articles

Intellectual property law sorts subject matter into a variety of different regimes, each with different terms of protection and different rules of protectability, infringement, and defenses. For that sorting to be effective, IP needs principles to distinguish the subject matter of each system. This paper focuses on one of the most important aspects of border-drawing that our IP system undertakes — identifying “useful” subject matter.

This aspect is critical because our IP system gives utility patent law pride of place and draws the boundaries of the other doctrines in large part to respect utility patent’s supremacy. Yet IP law’s sense …

Trademarks And Unfair Competition, Clarisa Long

Faculty Scholarship

Chapter 9 summarizes the dominant law and economic approach to some of the doctrines comprising the two major strands of modern trademark law: classic trademark law, in which trademark protection is justified as reducing consumer search costs and preventing consumer confusion; and dilution law, which is explained by the more traditional intellectual property justifications of encouraging investment in creating valuable marks and protecting producer goodwill. It argues that the culmination of trademark law in the form of protection against dilution represents completion of a full circle of development of unfair competition law. From its start as a means of protecting …

Inventive Steps: The Crispr Patent Dispute And Scientific Progress, Jacob S. Sherkow

Other Publications

Recent decisions by patent offices in the USA and Europe concerning the revolutionary gene-editing technology, CRISPR/Cas9, have shed light on the importance — and puzzles — of one particular area of patent law: “nonobviousness”, as it known in the USA, or, in Europe, the “inventive step”. Patent law does not always neatly align itself with the realities of biological research. But these competing decisions from the U.S. Patent and Trademark Office and the European Patent Office have put those differences on parade. Unpacking these standards for CRISPR tell us a lot about how advances in biology are actually made — …

Droit De Suite, Copyright’S First Sale Doctrine And Preemption Of State Law, David E. Shipley

Scholarly Works

The primary focus of this article is whether California’s forty-year old droit de suite statute; the California Resale Royalty Act (CRRA), is subject to federal preemption under the Copyright Act. This issue is now being litigated in the Ninth Circuit, and this article concludes that the CRRA is preempted under section 301(a) of the Copyright Act and under the Supremacy Clause because it at odds with copyright’s well-established first sale doctrine.

The basic idea of droit de suite is that each time an artist’s work is resold by a dealer or auction house, the artist is entitled to a royalty, …

Which Supreme Court Cases Influenced Recent Supreme Court Ip Decisions? A Citation Study, Joseph S. Miller

Scholarly Works

The U.S. Supreme Court has decided an increasing number of intellectual property cases — especially patent cases — over the last several terms. Which prior cases influence the stated reasoning in these recent Supreme Court IP cases? A handful of citation studies of supreme courts in the U.S., both state and federal, conducted over the last 40 years suggest that the Court would most often cite its own prior cases; that it would cite its more recent cases more often than its older cases; and that a small number of its prior cases would receive a large share of the …

Reasonable Certainty & Corpus Linguistics: Judging Definiteness After Nautilus & Teva, Joseph S. Miller

Scholarly Works

In Nautilus (2014), the Supreme Court held “that a patent is invalid for indefiniteness if its claims...fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention.” We don’t require perfect clarity because, as Festo (2002) highlights, patentees can’t achieve it. We don’t launch a post hoc judicial salvage operation to rescue slipshod text because, as the functional-claiming cases from the 1930s and 1940s highlight, others can’t adequately plan around it. Reasonably certain notice, then, is just right: § 112 “require[s] that a patent’s claims, viewed in light of the specification and prosecution history, …

The Nature Of Sequential Innovation, Christopher Buccafusco, Stefan Bechtold, Christopher Jon Sprigman

Faculty Scholarship

When creators and innovators take up a new task, they face a world of existing creative works, inventions, and ideas, some of which are governed by intellectual property (IP) rights. This presents a choice: Should the creator pay to license those rights? Or, alternatively, should the creator undertake to innovate around them? Our Article formulates this “build on/build around decision” as the fundamental feature of sequential creativity, and it maps a number of factors—some legal, some contextual—that affect how creators are likely to decide between building on existing IP or building around it. Importantly, creators are influenced by more than …

Risk Regulation And Innovation: The Case Of Rights-Encumbered Biomedical Data Silos, Arti K. Rai

Faculty Scholarship

Recent Supreme Court cases on patent-eligible subject matter are likely to exacerbate the longstanding problem of biomedical data fragmentation. For each data silo, multiple overlapping legal claims and claimants must be addressed to achieve the benefits of pooling.

Commentators who have discussed the data aggregation challenge have generally focused on possibilities created through public funding, through collective action by research participants, or through pressure by payers. This Article emphasizes the important role of risk regulators, most notably the precedent offered by risk regulation in the area of clinical trial data.

While U.S. risk regulators have taken some positive steps, the …

Machiavellian Intellectual Property, Brian L. Frye

Law Faculty Scholarly Articles

In his controversial essay, “Faith-Based Intellectual Property,” Mark Lemley argues that moral theories of intellectual property are wrong because they are based on faith, rather than evidence. This article suggests that Lemley’s argument is controversial at least in part because it explicitly acknowledges that consequentialist and deontological theories of intellectual property rely on incompatible normative premises: consequentialist theories hold that intellectual property is justified only if it increases social welfare; deontological theories hold that intellectual property is justified even if it decreases social welfare. According to Berlin, the genius of Machiavelli was to recognize that when two moral theories have …

The Copy Process, Joseph P. Fishman

Vanderbilt Law School Faculty Publications

There’s more than one way to copy. The process of copying can be laborious or easy, expensive or cheap, educative or unenriching. But the two intellectual property regimes that make copying an element of liability, copyright and trade secrecy, approach these distinctions differently. Copyright conflates them. Infringement doctrine considers all copying processes equally suspect, asking only whether the resulting product is substantially similar to the protected work. By contrast, trade secrecy asks not only whether but also how the defendant copied. It limits liability to those who appropriate information through means that the law deems improper.

This Article argues that …

Speaking From The Grave. Should Copyright Listen?, Jessica Silbey

Faculty Scholarship

Should authors be able to control the use of their work after they die? It’s a question that touches deep personal and public concerns. It resonates with longstanding debates in literary studies over the “death of the author” and “authorial intent,” and is an issue that Professor Eva Subotnik tackles in her latest article, Artistic Control After Death (forthcoming in the Washington Law Review).

Currently, U.S. copyright expires 70 years after the author’s death so that control of an author’s copyrights extends far into the future. Long after an author creates a work, often decades after publication and the work’s …

Can China Protect The Olympics, Or Should The Olympics Be Protected From China?, Jennifer L. Donatuti

Georgia Journal of Law & Technology

No abstract provided.

Marketa Trimble Becomes The Inaugural Samuel S. Lionel Professor Of Intellectual Property Law, Marketa Trimble

Nevada Law Journal

No abstract provided.

Trending @ Rwu Law: Linn F. Freedman's Post: The Goal Of Gender Equality In Cybersecurity 08/23/2016, Linn F. Freedman

Law School Blogs

No abstract provided.

A La Recherche Du “Sens” Perdu: Copyrightable Creativity Deconstructed, Thomas M. Byron

Pace Law Review

The primary goal of this article is to show how the concept of “creativity” as defined and applied by courts in copyright cases fails to map any reasonable concept of creativity in certain critical respects. Accordingly, the first charge undertaken here is a deconstructive one—to show the lack of meaningful overlap between the legal definition of creativity and the “actual” meanings of that same term. To undertake this comparison, Part II of this Article focuses on perhaps the more easily determined of these two definitions of the term—“creativity” as defined by courts. Rather than giving an unduly broad berth …

"Transplanting" Organ Donors With Printers: The Legal And Ethical Implications Of Manufacturing Organs, Katherine A. Smith

Akron Law Review

Three-dimensional (3D) printing is no longer restricted to simple inanimate objects; that conjecture is a thing of the past. With advancements in many areas of science, living tissues and organs can now be printed through a technique called 3D bioprinting. This technology could potentially save the lives of the 120,000 Americans in need of an organ transplant. However, whether or not a 3D bioprinted organ qualifies as a “human organ” under the National Organ Transplant Act (NOTA) and whether 3D bioprinted organs require federal approval could either delay or completely bar this technology’s promise. The Ninth Circuit’s Flynn v. Holder …

Curated Innovation, Lital Helman

Akron Law Review

The regulation of innovation-intensive industries is a critical issue for both innovation policy and regulation. In this Article, I propose a new framework to the way innovation-intensive industries are regulated.

My proposal is a four-pronged model, which I term “Curated Innovation.” In the first stage, policymakers would set a standard that would represent the outcome the regulation seeks to achieve. Second, policymakers would launch a competition, where innovative technologies or methods would race to meet the standard that was defined. Third, policymakers would select the methods or technologies that come closest to meeting the standard and create an incentive in …

Are Universities Special?, Shubha Ghosh

Akron Law Review

Universities offer a space for development of ideas, exploration of basic research, and productive outlets for creation and invention. As such, they are key to the innovation environment within which intellectual property laws operate. Although scholarship has focused on universities as institutions counter to other institutions like markets and government, less attention has been paid to universities as organizations, a site for governance through detailed rules and commonly understood norms. When understood as an organization, universities display three overlapping, but distinct models: one of pure research, one of pure commercialization, and one of public purpose. These three models together define …