Intellectual Property Law Commons^™

A Survey Of Researchers’ Needs And Priorities For Data Sharing, Iain Hrynaszkiewicz, James Harney, Lauren Cadwallader

Copyright, Fair Use, Scholarly Communication, etc.

One of the ways in which the publisher PLOS supports open science is via a stringent data availability policy established in 2014. Despite this policy, and more data sharing policies being introduced by other organizations, best practices for data sharing are adopted by a minority of researchers in their publications. Problems with effective research data sharing persist and these problems have been quantified by previous research as a lack of time, resources, incentives, and/or skills to share data.

In this study we built on this research by investigating the importance of tasks associated with data sharing, and researchers’ satisfaction with …

Blockchain Copyright Exchange – A Prototype, Jiarui Liu

Buffalo Law Review

The copyright market for creative works such as music and movies traditionally involves a complex web of licensing transactions and exorbitant transaction costs. Out of every dollar that consumers pay, an artist who writes, performs, and produces her own work may receive less than fifteen cents while the rest are diverted to cover the costs of financing new production, marketing new works, and distributing royalties. Although artists are typically scheduled to receive royalties on a quarterly basis, a payment may lag as far as two years after users paid. Furthermore, if a collecting society is unable to identify the rightful …

Corporate Governance Gaming: The Collective Power Of Retail Investors, Sergio Alberto Gramitto Ricci, Christina M. Sautter

Faculty Works

The GameStop saga and meme stock frenzy have shown the pathway to the most disruptive revolution in corporate governance of the millennium. New generations of retail investors use technologies, online forums, and gaming dynamics to coordinate their actions and obtain unprecedented results. Signals indicate that these investors, whom we can dub wireless investors, are currently expanding their actions to corporate governance. Wireless investors’ generational characteristics suggest that they will use corporate governance to pursue social and environmental causes. In fact, wireless investors can set in motion a social movement able to bring business corporations to serve their original partly-private-partly-public purpose. …

Lessons Learned From The Hiv/Aids Pandemic And Access To Medicines For Covid-19 Treatment, Thalia Le

Independent Study Project (ISP) Collection

There is an imminent need to address the healthcare disparities in accessing all COVID-19 medicinal products in developing countries. While logistical issues like inadequate production facilities such as the lack of vaccines administration capacity, storage issues, gap between supply and demand as well as vaccine hesitancy can certainly play a part in impeding COVID19 medicines distribution, patent monopolies and intellectual property protection laws further exacerbated the problem, especially when vaccines were at its early stages of authorization. Historical and contemporary case studies of efforts to challenge patents on HIV AVRs treatment provide a useful lens through which we may glean …

Reattribution, The Poison Pill And Inventorship, Dennis D. Crouch

Faculty Publications

Brian Frye's Right of Reattribution proposes a mechanism for loosening the strictures of attribution associated with creative works of authorship and giving the law of attribution a pro-property spin. Authors regularly receive attribution recognizing their authorship role. Frye transforms this norm of attribution into a fully alienable property right. An author would receive original rights of attribution, but those rights could then be sold or transferred to another person seeking accolades. This secondary transfer process is knows as reattribution. Frye recognizes that a right of reattribution would require congressional action since the current scope of attribution rights is limited by …

Copyrighting Tiktok Dances: Choreography In The Internet Age, Ali Johnson

Washington Law Review

TikTok is a video-sharing social media application that launched in 2018 and has grown wildly since its inception. Many users are drawn to the platform by “dance challenges”—short dance routines of varying complexity set to popular songs that are recreated by other users, eventually going “viral” (i.e., recreated on a massive scale by other users) on the app. Going viral can provide young dancers and choreographers an opportunity to break into the highly competitive entertainment industry. However, there is a problem: due to TikTok’s interface and community practices, the original creators of a dance (who, significantly, are often young women …

Games Without Frontiers: The Increasing Importance Of Intellectual Property Rights In The People’S Republic Of China, James M. Cooper

Faculty Scholarship

Intellectual property (“IP”) protection in the People's Republic of China has been murky and amorphous. The country is currently enjoying a historic era with significant infrastructure and investment projects occurring as the Chinese consumer society substantially expands. These simultaneous trends require that China commit to the securitization and protection of IP rights to sustain its rapid economic growth.

Comments On Preliminary Draft 7 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek

Faculty Scholarship

PD7 is often confusing, largely as a result of failure to provide important explanations or definitions, or to tell the reader where that information can be found. Key terms, such as “edicts of law” and “formalities” remain undefined. Formalities are a principal topic of PD7; they deserve a more thorough description than the draft contains, addressing what formalities are, whether every declaratory obligation (or option) is a “formality,” or only those that go to the existence or enforcement of copyright (this is the Berne Convention meaning of “formality”).

Taking Exception To Assessments Of American Exceptionalism: Why The United States Isn’T Such An Outlier On Free Speech, Evelyn Mary Aswad

Dickinson Law Review (2017-Present)

One of the most significant challenges to human freedom in the digital age involves the sheer power of private companies over speech and the fact that power is untethered to existing free speech principles. Heated debates are ongoing about what standards social media companies should adopt to regulate speech on their platforms. Some have argued that global social media companies, such as Facebook and Twitter, should align their speech codes with the international human rights law standards of the United Nations (“U.N.”). Others have countered that U.S.-based companies should apply First Amendment standards. Much of this debate is premised on …

Destruction, The Rebirth Of Art: Analyzing The Right Of Integrity’S Role In Modern Art, Connely Doizé

Journal of Intellectual Property Law

Creative destruction uses destruction to create new meaning in a work. This process is best explained as a Phoenix, rising from the ashes of destruction. The term “Art” encompasses infinite meanings and in this Note, I argue that destruction constitutes one of them. Resulting from this connection, I argue that destruction, specifically Creative Destruction, must not be hampered by law. In 1990, Congress promulgated the Visual Artist Rights Act, 17 U.S.C.A. 106A. This legislation formally introduced the moral rights of attribution and integrity into United States legal doctrine. Specifically, the right of integrity grants an artist the right to prevent …

A New Way For Voting In American Elections: Addressing The Patentability Of A Blockchain Mail-In Voting System, Brandon D. Waller

Journal of Intellectual Property Law

The novel corona virus turned life upside down throughout the world in 2020. One of its many impacts was the fear it gave people of going out in public as doing such could increase the likelihood of contraction. This disease happened to come about during an election year in the United States and this raised many questions about how voting could be safely conducted. A hot topic debate took over America as to whether or not mail-in voting would suffice. The United States Postal Service sought to find a reliable way to conduct mail-in voting and filed for a patent …

Big Tech In A Small Pond: How The Internet Economy Became So Concentrated And What Sector-Specific Regulation Can Do To Reel It In, Andy Wilson

Journal of Intellectual Property Law

While the early days of the internet were marked by a proliferation of new internet platforms offering different services, over time much of the sector became dominated by the handful of internet giants we know today. Discomfort with the outsized role that these enormous companies play in the daily lives of billions has driven a growing consensus that they need to be reined in, culminating in federal and state agencies launching a slew of antitrust suits against Google and Facebook in late 2020. These renewed antitrust efforts will likely be insufficient to address competitive harms in the internet economy, given …

The Missing Algorithm: Safeguarding Brady Against The Rise Of Trade Secrecy In Policing, Deborah Won

Michigan Law Review

Trade secrecy, a form of intellectual property protection, serves the important societal function of promoting innovation. But as police departments across the country increasingly rely on proprietary technologies like facial recognition and predictive policing tools, an uneasy tension between due process and trade secrecy has developed: to fulfill Brady’s constitutional promise of a fair trial, defendants must have access to the technologies accusing them, access that trade secrecy inhibits. Thus far, this tension is being resolved too far in favor of the trade secret holder—and at too great an expense to the defendant. The wrong balance has been struck.

This …

The Death Of The Genus Claim, Sean B. Seymore, Dimitry Karshted, Mark A. Lemley

Vanderbilt Law School Faculty Publications

The central feature of patent law in the chemical, biotechnology, and pharmaceutical industries is the genus claim a patent claim that covers not just one specific chemical but a group of related chemicals. Genus claims are everywhere, and any patent lawyer will tell you they are critical to effective patent protection. But as we show in this Article, the law has changed dramatically in the last thirty years, to the point where it is nearly impossible to maintain a valid genus claim. Courts almost always hold them invalid, either at trial or on appeal. Remarkably, courts do this without acknowledging …

Monopolizing Sports Data, Marc Edelman, John T. Holden

William & Mary Law Review

With legal sports betting viewed as a panacea for state budget woes across the United States, the underlying data that fuels the sports betting industry has emerged as an especially valuable asset. In the hopes of capitalizing on state laws that have now legalized sports betting, United States professional sports leagues have attempted to gain exclusive ownership rights over valuable sports betting data by asking legislators to mandate that bookmakers exclusively use data sold through the league. In addition, some sports leagues have imposed policies mandating that teams bundle together their collected data for purposes of selling it exclusively through …

The Right To Dine: Why New York City's Restaurant Culture Is Worth Saving, Evelyn Baert

Cardozo International & Comparative Law Review

The note argues that New York City's restaurant culture, akin to Paris's, holds significant cultural and economic value and should be preserved through comprehensive government relief measures. It advocates for adopting a French-inspired approach to economic aid, emphasizing the importance of restaurants as social and cultural hubs beyond mere economic entities.

Under The Umbrella: Promoting Public Access To The Law, D.R. Jones

Journal of Intellectual Property Law

People need to know the law and have access to the law. Allowing copyright claims in “the law” can lead to severe restrictions on public knowledge and access. This article reviews court decisions spanning three centuries that have upheld the people’s needs over the proprietary rights of copyright holders. The review includes a discussion and analysis of three recent decisions that are under the umbrella of the principle that members of the public need unfettered access to the law. The Supreme Court in Georgia v. Public.Resource.Org reaffirmed and further refined the government edicts doctrine which holds that government edicts are …

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

Journal of Intellectual Property Law

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, and this article discusses this 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; …

Contextualizing Michael Jordan V. Qiaodan Sports: I Don’T Believe I Can Fly, Or Do Business, In China, Justin Blair

Journal of Intellectual Property Law

To be a superstar in America means to live with the pressure of maintaining a certain reputation and level of popularity during one’s professional career. Fame in America often translates to fame internationally, and well-known individuals are typically incentivized to use the constantly evolving internet and media at their disposal to increase global exposure with respect to their brands. American celebrities consequently generate social and monetary capital, and while they willingly increase fan access into their personal lives, opportunistic individuals in foreign territories have on occasion successfully invaded the trademarks of these celebrities. This issue traces back to the turn …

Oof! Nice Try Congress – The Downfalls Case Act And Why We Should Be Looking To Our Cousins Across The Pond For Guidance In Updating Our New Small Claims Intellectual Property Court, Cori Henris

Journal of Intellectual Property Law

The rise in copyright cases in the United States has led Congress to begin thinking about how to make it more accessible for small creators to fight for their rights in court. The current system for copyrights claims to be brought in the Federal system is too time consuming and costly. Leaving many creators with all the rights to protect their creations but no means to do so when they are infringed upon. The proposed CASE Act was supposed to be the solution. It would create a small claims court in the United States and provide for a location for …

Poverty Via Monopolization: The Impact That Intellectual Property Rights And Federal Subsidies Have On Farm Poverty, Elizabeth Slater

Journal of Intellectual Property Law

The poverty rate among farmers and those living in rural America is about four percent higher than those who live in metropolitan areas. The majority of these farmers rely on farm subsidies from the federal government to offset low farm profits. The seed price for these farmers has increased astronomically, with corn seed representing fifteen percent of total corn production expenses. Federal law contributes to the high input prices by allowing developers of new seed varieties to monopolize their research findings under the Plant Variety Protection Act and other intellectual property protection. Because of the complexity and expense of developing …

Weaponizing Copyright, Cathay Y. N. Smith

Faculty Law Review Articles

Copyright grants authors exclusive rights in their works in order to encourage creation and dissemination of socially valuable works. It permits copyright owners to assert their copyright against violations of those rights when necessary to protect their market exclusivity and economic interests. Increasingly, however, copyright is being used by individuals to achieve other objectives. This Article examines the increasingly widespread phenomenon of individuals using copyright to vindicate noncopyright interests, which this Article refers to as “weaponizing copyright.” In some cases, copyright is weaponized to silence criticism and legitimate speech. In other instances, the objective is to erase facts and make …

Trademarks And The Covid-19 Pandemic: An Empirical Analysis Of Trademark Applications Including The Terms "Covid," "Coronavirus," "Quarantine," "Social Distancing," "Six Feet Apart," And "Shelter In Place", Irene Calboli

Faculty Scholarship

True to its nature as a (hopefully) once in a lifetime event, the COVID-19 pandemic has led to a tsunami of trademark applications. These include the terms “COVID,” “Coronavirus,” and other medical and pandemic-management related terms. This unprecedented number of applications has been highlighted by several commentators in general terms in the past months. This Article examines these applications in detail. Notably, the Article presents the first and most complete survey of the applications filed between the onset of the pandemic and the end of 2020, which include the following terms: “COVID,” “Coronavirus,” “Quarantine,” “Social Distancing,” “Six Feet Apart,” and …

Intellectual Property Exhaustion And Parallel Imports Of Pharmaceuticals: A Comparative And Critical Review, Irene Calboli

Faculty Scholarship

This Chapter addresses the topic of intellectual property (IP) exhaustion in the context of the parallel trade of pharmaceuticals. These imports, which are controversial in general, are more complex with respect to pharmaceuticals, which require additional marketing and import authorizations. Nevertheless, individual countries remain free to accept these imports under the flexibility of Article 6 of the Agreement on Trade Related Aspects to Intellectual Property Rights (TRIPS Agreement). This Chapter reviews several national approaches—in developed, developing, and least developed countries (LDCs)—from the perspective of the exhaustion of patent rights as well as other IP rights. Through this review, it highlights …

Joint Submission Of Ip Scholars, Re. Consultation On A Modern Copyright Framework For Artificial Intelligence And The Internet Of Things, Carys Craig

Commissioned Reports, Studies and Public Policy Documents

No abstract provided.

"Prep"Aring For A Challenge To Government-Owned Patents, Caleb Holland

Catholic University Law Review

The United States Government owns one of the largest patent estates in the world, but it rarely brings suit for patent infringement. To understand why that may be, this paper looks critically at the Government as a patent holder. Specifically, the paper reviews the fundamentals of American patents and explores the intricacies unique to the Government as an entity that both grants and holds patent rights. The paper examines the historical progression of how the United States Government positions itself with regard to its patents, tracing this evolution from Constitutional origins to more recent statutory refinements. Finally, the paper looks …

A Half-Built House: The Substantial Similarity Analysis Split In Architectural Copyright Infringement Cases, Madison V. Smiley

Brooklyn Law Review

The path to extending copyright protection to architectural works in the United States has not come without its challenges, especially as the federal courts continue to muddle through complicated and varying case law to determine whether architectural works infringement has occurred in a given dispute. Applying a uniform approach to analyze substantial similarity in a way that effectively protects architectural works across the federal circuits is necessary to fulfill the legislative intent and the constitutional intent of copyright protection. Likewise, a uniform approach will clarify the level of copyright protection that architectural works are permitted to receive in the United …

Food For Thought: Intellectual Property Protection For Recipes And Food Designs, Kurt M. Saunders, Valerie Flugge

Duke Law & Technology Review

As any chef will tell you, cooking and food preparation is a creative, sometimes innovative, endeavor. Much thought and time is invested in selecting ingredients, developing the process for preparing the dish, and designing an interesting or appealing look and feel for a food item. If this is true, then it should come as no surprise that recipes, food designs, and other culinary creations can be protected by various forms of intellectual property, namely: trade secrets, design and utility patents, trade dress, but usually not copyright. This article considers how intellectual property law has been applied to protect recipes and …

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 J. Craig, Michael Geist, João Quintais

Testimony and Submissions

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” …

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, João Pedro Quintais

Commissioned Reports, Studies and Public Policy Documents

No abstract provided.