Intellectual Property Law Commons^™

Protecting The Public Domain And The Right To Use Copyrighted Works: Four Decades Of The Eleventh Circuit’S Copyright Law Jurisprudence, David E. Shipley

Scholarly Works

This article is about the importance of the copyright law jurisprudence from the U.S. Court of Appeals for the Eleventh Circuit. This appellate court turns 40 in 2021, and it has rendered many influential copyright law decisions in the last four decades. Its body of work is impressive. This article discusses the court’s important decisions in the following areas: the originality standard; the application of the U.S. Supreme Court’s Feist decision to compilations, directories, computer software, architectural works, and other creative works like movies, photographs, and characters; copyright protection for unfixed works; the scope of the government edicts doctrine; and, …

Homography Of Inventorship: Dabus And Valuing Inventors, Jordana Goodman

Faculty Scholarship

On July 28, 2021, the Device for the Autonomous Bootstrapping of Unified Sentience ("DAB US") became the first computer to be recognized as a patent inventor. Due to the advocacy of DAB US's inventor, Dr. Stephen Thaler, the world's definition of "inventor" has finally fractured - dividing patent regimes between recognition of machine inventorship and lack thereof This division has sparked many scholarly conversations about inventorship contribution, but none have discussed the implications of a homographic inventorship.

This Article addresses the implications of international homographic inventorship - where countries have different notions and rules concerning patent inventorship - and the …

Who Benefits?: How The Aia Hurt Deceptively Non-Joined Inventors, Jordana N. Goodman

Faculty Scholarship

Congress enacted the America Invents Act (“AIA”) to bolster economic development, sustain American innovation, and protect American jobs. This pro-business legislation, however, overlooked one actor critical to any successful innovation endeavor: the inventor. The AIA created access barriers, preventing inventors from efficiently and effectively seeking the entire remedy spectrum to which they are entitled. Paul Morinville and others have opined that the new first-to-file system put small inventors out of business, naming the AIA the single worst disaster in the history of the U.S. patent system. Beyond the filing and subject matter changes, the AIA created fundamental access to justice …

Ms. Attribution: How Authorship Credit Contributes To The Gender Gap, Jordana Goodman

Faculty Scholarship

Misattribution plagues the practice of law in the United States. Seasoned practitioners and legislators alike will often claim full credit for joint work and, in some cases, for the entirety of a junior associate’s writing. The powerful over-credit themselves on legislation, opinions, and other legal works to the detriment of junior staff and associates. The ingrained and expected practice of leveraging junior attorneys as ghost-writers is, to many, unethical. But it presents a distinct concern that others have yet to interrogate: misattribution disparately impacts underrepresented members of the legal profession.

This Article fills that space by offering a quantitative analysis …

New Copyright Stories: Clearing The Way For Fair Wages And Equitable Working Conditions In American Theater And Other Creative Industries, Jessica Silbey

Faculty Scholarship

We need some new intellectual property stories. By stories, I don’t mean entertaining fictions. I mean instead accounts or explanations that make sense of the world as it is lived by everyday people. Most of our relevant intellectual property laws were forged in the mid-twentieth century and have failed to keep pace with the transformations in creative and innovative practices of the twentyfirst. Being out-of-sync or failing to recognize broader existing stakeholders means laws are poorly aligned with on-the-ground realities and are out-of-touch with values and interests of the people laws serve. The Article at the center of this Symposium …

We Can Make A Better Use Of Orcid: Five Observed Misapplications, Miriam Baglioni, Paolo Manghi, Andrea Mannocci, Alessia Bardi

Copyright, Fair Use, Scholarly Communication, etc.

Since 2012, the “Open Researcher and Contributor ID” organisation (ORCID) has been successfully running a worldwide registry, with the aim of “providing a unique, persistent identifier for individuals to use as they engage in research, scholarship, and innovation activities”. Any service in the scholarly communication ecosystem (e.g., publishers, repositories, CRIS systems, etc.) can contribute to a non-ambiguous scholarly record by including, during metadata deposition, referrals to iDs in the ORCID registry.

The OpenAIRE Research Graph is a scholarly knowledge graph that aggregates both records from the ORCID registry and publication records with ORCID referrals from publishers and repositories worldwide to …

Stifling Dissent Or Enforcing Rules? The State Of Speech Rights In Online Forums, Noah Olson

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

“Storytime: We’Re Being Sued” – Copyright Infringement And Fair Use In The Digital Era, Mikayla Spencer

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

The Importance Of Being Earnestly Innovative: The Increasing Role Of Intellectual Property Law In The Global Economy, Inma Sumaita

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Intellectual Property & National Security, James Morrison

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

The Patentability Of Antibodies For Use In Medications After Amgen V. Sanofi, Kaitlyn Taylor

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Copyright Claims And Constitutional Games: The Constitutionality Of The Copyright Claims Board Following The Supreme Court Ruling In Arthrex, Laura Callihan

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

Trick Or Treat? How A U.S. Patent Over A Method For Processing Sugarcane Wrongly Alarmed The Colombian Panela Industry, Carter Ostrowski

University of Cincinnati Law Review

No abstract provided.

Audiovisual Metadata Platform Pilot Development (Amppd), Final Project Report, Jon W. Dunn, Ying Feng, Juliet L. Hardesty, Brian Wheeler, Maria Whitaker, Thomas Whittaker, Shawn Averkamp, Bertram Lyons, Amy Rudersdorf, Tanya Clement, Liz Fischer

Copyright, Fair Use, Scholarly Communication, etc.

This report documents the experience and findings of the Audiovisual Metadata Platform Pilot Development (AMPPD) project, which has worked to enable more efficient generation of metadata to support discovery and use of digitized and born-digital audio and moving image collections. The AMPPD project was carried out by partners Indiana University Libraries, AVP, University of Texas at Austin, and New York Public Library between 2018-2021.

User Rights In Canadian Copyright Law, David Vaver

Conference Papers

It is very kind of you to invite me to talk about User Rights at the Association’s Copyright Symposium. In ancient times, symposia were occasions to discuss and debate matters of great moment, to the accompaniment of copious food, wine, and revelry. Zoom of course limits the conduct of this symposium but I hope participants will take the ancient precedent to heart at their end of their internet connection. Sometimes a symposium would wait until the hunt for a wild boar was over before starting. I hope that was not the motive behind your organizers hunting me down for this …

The Secret's Out: The Third Circuit Clarifies Pennsylvania Trade Secret Law In Advanced Fluid Systems, Inc. V. Huber, Joseph Yenerall

Villanova Law Review (1956 - )

No abstract provided.

The Arkansas Code And Georgia V. Public.Resource.Org, Daniel Bell

Arkansas Law Notes

The United States Supreme Court decided Georgia v. Public.Resource.Org, Inc. (“PRO”) in late April, 2020, a case with major implications for those who rely on the Arkansas statutes. The case addressed whether extra materials Georgia includes in its official statutes, the annotations, can be copyrighted, or if they are in the public domain and can be freely distributed without permission. The case pitted two important competing interests against each other: the ability of citizens to freely access the official versions of laws of their state, versus the interests of a third-party publisher in being compensated for its work. Arkansas produces …

Copyright And The Creative Process, Mark Bartholomew

Notre Dame Law Review

Copyright is typically described as a mechanism for encouraging the production of creative works. On this view, copyright protection should be granted to genuinely creative works but denied to non-creative ones. Yet that is not how the law works. Instead, almost anything—from test answer sheets to instruction manuals to replicas of items in the public domain—is deemed creative and therefore eligible for copyright protection. This is the consequence of a century of copyright doctrine assuming that artistic creativity is incapable of measurement, unaffected by personal motivation, and incomprehensible to novices and experts alike. Recent neuroscientific research contradicts these assumptions. It …

France's Organisme De Défense Et De Gestion: A Model For Farmer Collective Action Through Standard Development And Brand Management, Christopher J. Bardenhagen, Philip H. Howard, Marie-Odile Noziéres-Petit

Journal of Food Law & Policy

Quality-based food production, often with a regional dimension, can provide farmers with new, value added markets. It can also provide consumers with access to place based high-quality products, and may benefit local economies through increased commerce. French Organismes de Défense et de Gestion (ODGs) illustrate a mode of quality-based agri-food business organization. ODGs focus on the development of production standards, as well as management of the intellectual property related to those standards. This mode, which is commonly used in Europe, has not often been used in the United States, despite its potential for regional food system development. The ODG mode …

The Use Doctrine In Trademark Law: Issues From Trade And Transborder Reputation, Srividhya Ragavan

Cardozo Law Review

No abstract provided.

A Novel Dataset Measuring Change In Copyright Exceptions, Michael Palmedo

Joint PIJIP/TLS Research Paper Series

Copyrights grant creators long periods of market exclusivity during which they or their agents have the exclusive right to reproduce and distribute their works. However, copyright exceptions limit their scope and strength. The laws on both copyright protection and copyright exceptions vary substantially from one country to the next. This working paper introduces a novel, survey-based dataset that describes changes to 24 countries’ laws on copyright exceptions over time. To explore the data, I construct two indices from subsets of the dataset; one that focus on exceptions related to ICT technologies and another that focuses on educational uses. The indices …

Ostrich With Its Head In The Sand: The Law, Inventorship, & Artificial Intelligence, Ben Kovach

Northwestern Journal of Technology and Intellectual Property

As artificial intelligence (AI) system’s capabilities advance, the law has struggled to keep pace. Nowhere is this more evident than patent law’s refusal to recognize AI as an inventor. This is precisely what happened when, in 2020, the U.S. Patent and Trademark Office (USPTO) ruled that it will not accept an AI system as a named inventor on a patent.

This note explores untenable legal fiction that the USPTO’s ruling has created. First, it explores the current state of AI systems, focusing on those capable of invention. Next, it examines patent law’s inventorship doctrine and the USPTO’s application of that …

Copyright’S Deprivations, Anne-Marie Carstens

Washington Law Review

This Article challenges the constitutionality of a copyright infringement remedy provided in federal copyright law: courts can order the destruction or other permanent deprivation of personal property based on its mere capacity to serve as a vehicle for infringement. This deprivation remedy requires no showing of actual nexus to the litigated infringement, no finding of willfulness, and no showing that the property’s infringing uses comprise the significant or predominant uses. These striking deficits stem from a historical fiction that viewed a tool of infringement, such as a printing plate, as the functional equivalent of an infringing copy itself. Today, though, …

Copyright’S Techno-Pessimist Creep, Xiyin Tang

Fordham Law Review

Government investigations and public scrutiny of Big Tech are at an all-time high. While current legal scholarship and government focus have centered overwhelmingly on whether and how antitrust law and § 230 of the Communications Decency Act can be revised to address platform dominance, scant attention has been paid to another, almost unseen attempt to regulate Big Tech: copyright law. The recent adoption in Europe of Article 17 of the Copyright Directive, which holds internet platforms liable for user-generated creative content unless they obtain costly content licenses, is the most direct example of such regulation—and may serve as precedent for …

An Empirical Study: Willful Infringement & Enhanced Damages In Patent Law After Halo, Karen E. Sandrik

Michigan Technology Law Review

For decades, companies and attorneys have instructed teams of engineers, researchers, and computer scientists to ignore patents. The reasoning for this advice: if there is no pre-suit knowledge of a patent, then it is nearly impossible for a patent holder to prove that enhanced damages are warranted. Pre-suit knowledge is a prerequisite for a finding of willful infringement, which is itself a prerequisite for awarding enhanced damages. The median patent damages award is around ten million dollars, and large companies like Intel, Teva Pharmaceuticals, Microsoft, and Abbott Laboratories have all recently faced billion-dollar patent infringement judgments. In this landscape, a …

Systematic Manipulation Of The Publication Process: Flowcharts And Infographics [English], Jigisha Patel, Simone Ragavooloo, Cat Chatfield

Copyright, Fair Use, Scholarly Communication, etc.

Includes definition of systematic manipulation of the publication process, suspicious submission patterns, suspicious patterns in the content of manuscripts/articles, suspicious patterns around peer review, how to investigate and prevent further publication manipulation, information on the COPE Publishers' Forum, tables and flow charts with recommended actions, and a list of further reading.

Facing Injustice: How Face Recognition Technology May Increase The Incidence Of Misidentifications And Wrongful Convictions, Laura M. Moy

Georgetown Law Faculty Publications and Other Works

Does law enforcement use of face recognition technology paired with eyewitness identifications increase the incidence of wrongful convictions in U.S. criminal law? This Article explores this critical question and posits that the answer may be yes. Facial recognition is frequently used by law enforcement agencies to help generate investigative leads that are then presented to eyewitnesses for positive identification. But erroneous eyewitness accounts are the number one cause of wrongful convictions, and the use of face recognition to generate investigative leads may create the conditions for erroneous eyewitness identifications to take place. This is because face recognition technology is designed …

Arbitrating Copyright Disputes In Egypt, Islam Mohamed

Maurer Theses and Dissertations

Egypt is witnessing increasing difficulty in implementing and practicing protectionist policies for intellectual property rights, which includes copyright as a fundamental element. Since the Egyptian judicial system is exclusively concerned with adjudicating all disputes, it has become increasingly burdened in recent decades due to this monopoly. As a result, the Egyptian judiciary is witnessing a significant slowdown in resolving conflicts and procedural obstacles which delay the restitution of Intellectual property rights to its owners. Thus, we believe that applying arbitration will contribute to resolving copyright disputes in advance on one hand and will encourage an attractive climate in such matters …

The Use Doctrine In Trademark Law: Issues From Trade And Transborder Reputation, Srividhya Ragavan

Faculty Scholarship

Mindful of the current trend within the United States to revive the focus on the use of trademark to determine a mark’s ability to act as a source indicator, in this paper I highlight how focusing on use can create disparate results by examining the role of use when dealing with well-known marks. Hence, this paper implicates the prescriptions from the harmonized trade regime, especially trademark law. In doing so, the paper outlines larger public policy concerns that will ensue especially considering the role of the use doctrine in the context of international harmonization of protection of well-known trademarks. In …

Cracking The Code: How To Prevent Copyright Termination From Upending The Proprietary And Open Source Software Markets, Grant Emrich

Fordham Law Review

Computer software is protected by copyright law through its underlying code, which courts have interpreted as constituting a “literary work” pursuant to the Copyright Act. Prior to including software as copyrightable subject matter, Congress established a termination right which grants original authors the ability to reclaim their copyright thirty-five years after they have transferred it. Termination was intended to benefit up-and-coming authors who faced an inherent disadvantage in the market when selling the rights to their works. In the near future, many software works will reach the thirty-five-year threshold, thus presenting courts with a novel application of termination to computer …