Intellectual Property Law Commons^™

Digital Originality, Edward Lee

Vanderbilt Journal of Entertainment & Technology Law

This Article examines the doctrine of originality in U.S. copyright law and proposes a reconfigured, three-part test that can better analyze issues of first impression involving works created with new digital technologies. The proposed test, encapsulated by the concept of digital originality, provides much needed guidance to courts to address the increasing complexities of digital creations in the twenty-first century.

Curbing Copyblight, John Tehranian

Vanderbilt Journal of Entertainment & Technology Law

This Article identifies and analyzes the growing problem of "copyblight" the use of overreaching claims by putative copyright holders to ownership of public domain works, and, more broadly, to exclusive rights which they do not hold in copyrighted works. Despite the fact that copyblight circumscribes political and social discourse, stifles creativity, and constricts the dissemination of information, present law provides few, if any, disincentives against the practice. Building on the groundbreaking work of Paul Heald and Jason Mazzone, this Article advances three proposals to temper the problems of overreach in order to restore a needed balance in our copyright system: …

Patents 101: Patentable Subject Matter And Separation Of Powers, Max S. Oppenheimer

Vanderbilt Journal of Entertainment & Technology Law

The definition of statutory subject matter lies at the heart of the patent system. It is the reflection of Congress's policy decision as to what types of inventions one may patent. While the congressional definition of statutory subject matter (in what is now 35 U.S.C. § 101) has remained fundamentally constant since 1790, the Supreme Court has reinterpreted and redefined statutory subject matter several times, leaving lower courts with the frustrating task of trying to develop a coherent jurisprudence against a changing landscape. This inconstancy has introduced uncertainty for inventors who are trying to make the fundamental decision of whether …

Intercepting Licensing Rights: Why College Athletes Need A Federal Right Of Publicity, Talor Bearman

Vanderbilt Journal of Entertainment & Technology Law

The right of publicity is the right of an individual to control the commercial use of her name, image, likeness, or other identifiable aspects of her persona. In the United States, the right of publicity is a state-law right, not federal, and recognition of the right varies significantly from state to state. The lack of uniformity among states poses significant problems for individuals who are recognizable throughout the United States. Specifically, student athletes, who would lose the ability to play college athletics if they were reimbursed for the use of their images, are among the individuals most at risk of …

Law Professor As Artist: Themes And Variations In Keith Aoki's Intellectual Property Scholarship, Margaret Chon

Faculty Articles

This memorial tribute to the late Keith Aoki traces the impact of his intellectual property scholarship, particularly in the area of genetic resources.

The Romantic Collective Author, Margaret Chon

Faculty Articles

Although the romantic collective author is a much more elusive creature than its romantic individual counterpart, it can be discerned amidst the proliferation of expression on the Internet. This article first outlines the ways in which the romantic author effect operates through both its genius and its arbiter prongs within collaborative authorship practices in digital networks. It next turns to scientific collaboration, where this author effect is attenuated, to assess whether scientific authorship practices might contribute to a more realistic and less romantic understanding of expressive authorship practices. A subsequent case study of collaborative digital authorship by Wikipedia contributors uncovers …

Trademark Apologetic Justice: China And The Three Laws, Xuan-Thao Nguyen

Articles

The article will proceed as follows. Part I discusses the three bodies of law constituting China’s trademark jurisprudence by tracing the development of Trademark Law, Anti-Unfair Competition Law and Civil Law. All of these laws contain relevant provisions pertaining to trademark reputation and remedies, including injunction, damages and public apology to eliminate any bad effects. As China Supreme People’s Court has a significant role in shaping trademark jurisprudence and apologetic justice, Part I also analyzes judicial directives that provide guidance and instructions to the lower courts in addressing trademark reputation remedies.

An analysis of only statutes and judicial directives, however, …

Apologies As Intellectual Property Remedies: Lessons From China, Xuan-Thao Nguyen

Articles

It is a frequent refrain that “the world is shrinking.” In this same vein, the global influence of China is clearly rising. Chinese businesses are becoming more prominent in the global market, and as such, the influence and effect of Chinese law is likewise gaining in import. Chinese intellectual property law is no different.

One notable aspect of Chinese intellectual property law is the availability of apology as a remedy. Despite a culture that places a high value on apology, and considerable legal scholarship and precedent regarding apology as remedy, many in the United States scoff at the notion of …

Patents As Promoters Of Competition: The Guild Origins Of Patent Law In The Venetian Republic, Ted Sichelman, Sean O'Connor

Articles

Part II of this Article describes the artisan and merchant guild systems of the Venetian Republic. Part III explores the emergence of the patent system as a means for foreigners and Venetian citizens to compete with the guilds, as well as the eventual addition of negative exclusive rights to the basic license form of positive patent privileges. In so doing, contrary to the speculation of some scholars, we reject with near certainty the contention that the first patent law statute granting exclusionary rights for—in modern parlance—technological inventions was a silk-specific directive enacted by the Venetian Grand Council in the late …

Hired To Invent Vs. Works Made For Hire: Resolving The Inconsistency Among Rights Of Corporate Personhood, Authorship, And Inventorship, Sean M. O'Connor

Articles

This Essay focuses on the interrelation of three legal doctrines that affect the allocation of ownership and attribution of products of the human mind. The first, corporate personhood, grants corporations rights of personhood similar to those of natural persons. The second, the work-made-for-hire doctrine (WMFH) under copyright law, allocates ownership and attribution for copyrightable works to the employer of the natural-person author—even where that employer is a nonnatural, legal person such as a corporation. And the third, shop rights and the hired-to-invent exception, permits courts to grant equitable licenses or assignments to employers for their employees’ inventions.

These three doctrines …

Scaling The Patent System, Christina Mulligan, Timothy B. Lee

Scholarly Works

Why do firms in some industries ignore patents when developing new products? This paper posits a simple but novel answer to this long-puzzling question: firms ignore patents because they are unable to discover the patents their activities might infringe. The costs of finding relevant patents, which we call discovery costs, are prohibitively high.

Not all industries face high patent discovery costs. Chemical patents are "indexable," meaning that relevant patents can be efficiently retrieved by chemical formula. As a result, discovery costs in the chemical and pharmaceutical industries are low, and inadvertent infringement by firms in these industries is rare. But …

The Technological Edge, Elizabeth I. Winston

Scholarly Articles

To grant a patent to natural phenomena hinders innovation, taking back from the public that which the public has a right to possess. To deny a patent to man’s manufacture undercuts the fundamental bargain of the patent system. All inventions, at their core, may be deemed natural, rendering it difficult to distinguish between man’s manufacture and natural phenomena. Determining whether the innovative aspect of the product is a technological one, rather than a natural one, can clarify whether the patent grant promotes the progress of science and the useful arts. The higher the level of skill in the art required …

Curbing Consumer Complicity For Counterfeits In A Digital Environment, Peggy E. Chaudhry

Journal of Business & Technology Law

No abstract provided.

Better Mousetraps: Licensing, Access, And Innovation In The New Music Marketplace, Casey Rae-Hunter

Journal of Business & Technology Law

No abstract provided.

The Emperor's New Clothes: Intellectual Property Protections In China, Patricia E. Campbell, Michael Pecht

Journal of Business & Technology Law

No abstract provided.

"No Inventions, No Innovations": Reassessing The Government's Antitrust Case Against United States Steel Corporation, Guy B. Maseritz

Journal of Business & Technology Law

No abstract provided.

The Short-Sighted Attack On Patent Eligibility Of Healthcare Related Patents, Gregory Dolin

All Faculty Scholarship

On March 20, 2012, the Supreme Court of the United States unanimously decided the case of Mayo Collaborative Svc. v. Prometheus Labs. At issue was a patent, held by Prometheus that taught doctors how to adjust the amount of thiopurine (a drug used for treatment of a variety of autoimmune diseases) administered to a patient. In an opinion by Justice Breyer, the Court held Prometheus’s invention to not be patent eligible and invalidated the patent. Though I believe that the reasoning the Court employed was erroneous and highly problematic (of which more later), the decision could have been viewed as …

A Tango Between Copyright And Choreography: Whiteness As Status Property In Balanchine's Ballets, Fuller's Serpentine Dance, And Graham's Modern Dances, Caroline Joan S. Picart

Cardozo Journal of Equal Rights & Social Justice

The article examines the intersection of race, gender, and copyright law in the context of modern dance in the United States. It argues that the legal battles over copyright protection for choreography were deeply influenced by racial and gender biases, with white male choreographers like George Balanchine securing ownership and control over their works, while female choreographers like Martha Graham faced significant challenges in maintaining control over their intellectual property. The article highlights how these dynamics shaped the legal framework for copyright protection in dance, emphasizing the role of whiteness and gender in determining ownership and legacy.

In Defence Of A Defence - A Demonstrable Legitimate And Non-Infringing Purpose As A Full Defence To Anti-Circumvention Legislation, Andrew Yolles

Canadian Journal of Law and Technology

In this essay, I will argue that making a demonstrable lawful and non-infringing purpose a full defence to copyright infringement by circumvention of a TPM addresses many of the concerns raised by the currently proposed legislation, while avoiding the pitfalls of directly linking anti-circumvention laws with actual copyright infringement. As the ratification of the WIPO Internet treaties is the foremost concern for this legislation, I will begin with a discussion as to how this model can successfully implement the treaties’ anti-circumvention provisions where the Bill C-60 model may have failed. I will then explain why this model strikes a better …

Book Review: William F. Patry, How To Fix Copyright, Graham Reynolds

Canadian Journal of Law and Technology

In How to Fix Copyright, William F. Patry, one of America’s leading experts on copyright, calls for a “top-to-bottom, systemic overhaul” of copyright laws. For a Canadian readership in the midst of our own process of copyright reform, such a call to action is both timely and relevant.