Intellectual Property Law Commons^™

Plain Packaging And The Interpretation Of The Trips Agreement, Susy Frankel, Daniel Gervais

Vanderbilt Journal of Transnational Law

Plain packaging of cigarettes as a way of reducing tobacco consumption and its related health costs and effects raises a number of international trade law issues. The plain packaging measures adopted in Australia impose strict format requirements on word trademarks (such as Marlboro or Camel) and ban the use of figurative marks (colors, logos, etc.). As a result, questions have been raised as to plain packaging's compatibility with the World Trade Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).

WTO members can validly take measures to protect and promote public health, but in doing so they …

Personal Factory Or Catalyst For Piracy? The Hype, Hard Realities Of Consumer 3-D Printing, Charles W. Finocchiaro

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Graffiti Artists “Get Up” In Intellectual Property’S Negative Space, Al Roundtree

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Four Ways In Which Kirtsaeng Might Be Undone, James Gibson

Law Faculty Publications

In my previous entry in this series, I discussed the Supreme Court’s long-awaited decision in Kirtsaeng v. John Wiley & Sons, involving the unauthorized resale in the United States of textbooks purchased overseas. Indeed, the Kirtsaeng case and the issue it presented have been a popular subject of IP Issues commentary; before the Supreme Court ruling, I wrote on the issue here and here, and Randy Picker had some commentary both beforeand after the opinion came down.

You can read those earlier entries for the details, but the outcome of the case is clear: U.S. copyright law does not prohibit …

Hangover Effect: May I See Your Tattoo, Please?, Craig P. Bloom

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Deconstructing Disintermediation: A Skeptical Copyright Perspective, Guy Pessach

Cardozo Arts & Entertainment Law Journal

This essay attempts to uncover the impacts of disintermediation in copyright law. I argue that contrary to the common view, within the political economy of networked communication platforms and the Internet, disintermediation in copyright law does not necessarily lead to its expected outcomes. Disintermediation may undermine cultural diversity, decentralization and authors' welfare no less than the traditional corporate media proprietary model. My analysis focuses on the manner in which disintermediation in copyright law tends to stimulate concentrated markets, which channel audience attention to a handful of mega networked intermediaries. The market and media power, which is then held by these …

Republican Study Committee Policy Brief: Three Myths About Copyright Law And Where To Start To Fix It, Derek Khanna

Cardozo Arts & Entertainment Law Journal

The following report was written by Derek S. Khanna, at the time a congressional staffer with the House Republican Study Committee ("RSC"), and was published by the RSC on November 17, 2012. The RSC placed the report on their website and an e-mail was sent to approximately 165 Members of Congress and their staff with this official report. Within twenty-four hours of its publication, the RSC removed the report from its website but did not issue a formal retraction. As a result of the events following publication of the report, Mr. Khanna no longer works for the RSC. What follows …

Reflection On The House Republican Study Committee Copyright Report, Derek Khanna

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Why Can't We Be (F)Rands?: The Effect Of Reasonable And Non-Discriminatory Commitments On Standard-Essential Patent Licensing, Robert D. Keeler

Cardozo Arts & Entertainment Law Journal

This Note explores the effect of a patent holder's reasonable and non-discriminatory ("RAND") commitments to standard-setting organizations on their patent claims which are declared "standard-essential" by the standard-setting organization. It also analyzes the current standard-essential patent ("SEP") licensing system used by the majority of standard-setting organizations around the world and proposed modifications thereto.

This Note looks toward the current case of Microsoft v. Motorola Mobility, the recent Google Settlement with the Federal Trade Commission ("FTC"), and various calls for reform from other areas of the government. The Note concludes that it appears that we are moving toward a system in …

Don't Just Cover The Engineering Design Process, Patent It!, Philip A. Reed

STEMPS Faculty Publications

The article discusses the importance of understanding intellectual property (IP) concept for students of engineering design process. It highlights that IP classification are of four types which includes patent, trademarks and copyright. The article further offers brief information on process of obtaining a utility patent for technological inventions.

When Tigers Bare Teeth: A Qualitative Study Of University Patent Enforcement, Jacob H. Rooksby

Law Faculty Publications

The pursuit of patents is a key avenue of economic development and revenue generation for American research universities, and one with significant policy implications for higher education. In a time of shifting funding models for higher education, the $1.8 billion dollars American universities generated in revenues in 2011 from licensing their patents makes patenting an attractive candidate for further university attention and resource investment. Spurred in part by the Bayh-Dole Act of 1980, research universities across the country have created vast institutional  apparatuses—typically centered in technology transfer offices (“TTOs”)—to help move ideas invented in the laboratory and classroom into commercial …

Copyright Infringement Markets, Shyamkrishna Balganesh

Faculty Scholarship

Should copyright infringement claims be treated as marketable assets? Copyright law has long emphasized the free and independent alienability of its exclusive rights. Yet, the right to sue for infringement – which copyright law grants authors in order to render its exclusive rights operational – has never been thought of as independently assignable, or indeed as the target of investments by third parties. As a result, discussions of copyright law and policy rarely consider the possibility of an acquisition or investment market emerging for actionable copyright claims and the advantages that such a market might hold for copyright’s goals, objectives, …

The Uneasy Case Against Copyright Trolls, Shyamkrishna Balganesh

Faculty Scholarship

The copyright troll and the phenomenon of copyright trolling have thus far received surprisingly little attention in discussions of copyright law and policy. A copyright troll refers to an entity that acquires a tailored interest in a copyrighted work with the sole objective of enforcing claims relating to that work against copiers in a zealous and dogmatic manner. Not being a creator, distributor, performer, or indeed user of the protected work, the copyright troll operates entirely in the market for copyright claims. With specialized skills in monitoring and enforcing copyright infringement, the troll is able to lower its litigation costs, …

Biodiversity Heritage Library, Smithsonian Institution Libraries, Deanna Marcum

Copyright, Fair Use, Scholarly Communication, etc.

The Biodiversity Heritage Library (BHL), created in 2006, is the result of a collaboration of ten natural history museum and botanical garden libraries seeking to digitize core taxonomic literature and to make it free and openly available throughout the world. Today, the BHL includes fifteen member institutions whose efforts have shaped a collection of over 60,000 titles. It is supported through a combination of membership dues, in-kind support from member institutions, contributions from the user community, and direct support from the Smithsonian Institution Libraries, and it reaches tens of thousands of users each year. While managing the complex partnership has …

The Corporate Preference For Trade Secret, Andrew A. Schwartz

Publications

Many inventions can be legally protected either by patent or by trade secrecy, and a conventional wisdom exists on how to select between them. This Article adds to that literature by showing that corporations should have an inherent preference for trade secret over patent for reasons relating to their legal form. Among them is the idea that corporations are perpetual entities and therefore perfectly suited to reap the perpetual returns that only a trade secret can offer. The Article also addresses the potential for a conflict between the inherent corporate preference for trade secret and the preferences of corporate managers, …

The Missing Link: Making Research Easier With Linked Citations, Nick Harrell

Publications

No abstract provided.

Private Copyright Reform, Kristelia A. García

Publications

The government is not the only player in copyright reform, and perhaps not even the most important. Left to free market negotiation, risk averse licensors and licensees are contracting around the statutory license for certain types of copyright-protected content, and achieving greater efficiency via private ordering. This emerging phenomenon, herein termed "private copyright reform," presents both adverse selection and distributive justice concerns: first, circumvention of the statutory license goes against legislative intent by allowing for the reduction, and even elimination, of statutorily mandated royalties owed to non-parties. In addition, when presented without full term disclosure, privately determined royalty rates can …

Safe To Be Open: Study On The Protection Of Research Data And Recommendations For Access And Usage, Lucie Guibault, Andreas Wiebe

Books

Openness has become a common concept in a growing number of scientific and academic fields. Expressions such as Open Access (OA) or Open Content (OC) are often employed for publications of papers and research results, or are contained as conditions in tenders issued by a number of funding agencies. More recently the concept of Open Data (OD) is of growing interest in some fields, particularly those that produce large amounts of data – which are not usually protected by standard legal tools such as copyright. However, a thorough understanding of the meaning of Openness – especially its legal implications – …

Copyright Infringement Of Music: Determining Whether What Sounds Alike Is Alike, Margit Livingston, Joseph Urbinato

Vanderbilt Journal of Entertainment & Technology Law

The standard for copyright infringement is the same across different forms of expression. But musical expression poses special challenges for courts deciding infringement disputes because of its unique attributes. Tonality in Western music offers finite compositional choices that will be pleasing or satisfying to the ear. The vast storehouse of existing public domain music means that many of those choices have been exhausted. Although independent creation negates plagiarism, the inevitable similarity among musical pieces within the same genre leaves courts in a quandary as to whether defendant composers infringed earlier copyrighted works or simply found their own way to a …

Tax Incentives For Innovation In A Modern Ip Ecosystem, Joshua Chao

Vanderbilt Journal of Entertainment & Technology Law

Technological innovation is a long-recognized catalyst for economic growth in the United States, and its promotion is an important feature of national economic policy, as evidenced by the presence of various tax incentives for innovation in the US Internal Revenue Code. Tax incentives are an important means by which governments can deliver subsidies to promote such innovation. To be effective, however, any system of tax incentives must be tailored for current economic conditions and competitive landscapes. In the current ecosystem of innovation in the United States, this means that, at the very least, the incentives for innovation in the US …