Intellectual Property Law Commons^™

Testing As Commodification, Katharine B. Silbaugh

Faculty Scholarship

In this Essay, the author addresses criticism of the testing movement by education experts such as Jonathan Kozol. She explores the similarities in the discourses of philosophical discussions of commodification and behavioural economic discussions of intrinsic motivations. One conclusion that the author draws is that the comparison between the testing movement and commodification literature is not perfect, but they have both been counted, compared and measured, and flattened or thinned out of values.

Harvesting Intellectual Property: Inspired Beginnings And 'Work-Makes-Work,' Two Stages In The Creative Processes Of Artists And Innovators, Jessica Silbey

Faculty Scholarship

This Article is part of a larger empirical study based on face-to-face interviews with artists, scientists, engineers, their lawyers, agents, and business partners. The book-length project involves the collecting and analysis of stories from artists, scientists, and engineers about how and why they create and innovate. It also collects stories from their employers, business partners, managers, and lawyers about their role in facilitating the process of creating and innovating. The book’s aim is to make sense of the intersection between intellectual property law and creative and innovative activity, specifically to discern how intellectual property intervenes in the careers of the …

Hart V Finnis: How Will Positivism And Natural Law Account For The Socio-Legal Paradigm In Wikipedia, Siyuan Chen

Research Collection Yong Pung How School Of Law

There is little doubt that Wikipedia is one of the world’s most influential websites today – and its sphere of influence is set to grow in days to come. The evidence for this is strong. As of December 2010, Wikipedia is the Internet’s 6th most popular website (by virtue of the Alexa Traffic Rank), and it is also the most popular "general reference" site in cyberspace, with almost 4 million articles in the English language edition. It has been and will continue to be the flagship of Web 2.0, with every single edit being potentially scrutinised by a global audience, …

Paying It Forward: The Case For A Specific Statutory Limitation On Exclusive Rights For User-Generated Content Under Copyright Law, Warren B. Chik

Research Collection Yong Pung How School Of Law

This article examines user-generated content (“UGC”) and the significance of re-inventions in the context of an increasingly user-centric internet environment and an information sharing society. It will explain the need to provide a statutory limitation in the form of an exception or exemption for socially beneficial UGC on the exclusive rights under copyright law. This will also have the effect of protecting the internet intermediary that hosts and shares UGC. Nascent but abortive attempts have been made by Canada to introduce just such a provision into her copyright legislation, while some principles and rules have also emerged from various interest …

What Role For “Women,” “Men,” And Transpeople/Intersex People In Gender Equality: A Commentary, Edward D. Stein

Articles

This has been a very rich opening panel to what promises to be a terrific conference. The panelists' comments go in such varied directions that it is a challenge to be both a commentator and summarizer, especially when I have just a few minutes to speak. What I plan to do is say a little bit to draw together some of the themes that the panelists have been talking about that are connected to a couple of topics I have been working on while at the same time trying to look forward to some of the things I hope we …

Downstream Copyright Infringers, Yvette Joy Liebesman

All Faculty Scholarship

The advent of on-line music sales has been a boon to the recording industry as well as for musicians and the general public. Previously unknown artists have found new avenues to showcase their work, and consumers have easy access to an enormous variety of musical genres.

Yet an unintended consequence of the ability to sell songs through internet downloads is a novel, and until now, unnoticed way to infringe on copyrights - which, unless remedied, could lead to new classes of defendants never contemplated or desired to be ensnared in the Copyright Act’s protections for artists, musicians and authors. Unlike …

Secret Inventions, Jonas Anderson

Utah Law Faculty Scholarship

Patent law - and innovation policy more generally - has traditionally been conceptualized as antithetical to secrecy. Not only does the patent system require inventors to publicly disclose their inventions in order to receive a patent, but various patent doctrines are designed to encourage inventors to forego trade secrecy. This Article offers a critique of the law’s preference for patents. In particular, this Article examines whether and under what circumstances the law should prefer patents over secrets, and vice versa.

As an initial step towards a theoretically-supported system of inventor incentives, this Article constructs a framework that attempts to balance …

The In Rem Forfeiture Of Copyright-Infringing Domain Names, Andrew Sellars

Faculty Scholarship

In the summer of 2010, the Immigration and Customs Enforcement Division of the Department of Homeland Security began "Operation In Our Sites," an enforcement sweep targeted towards websites allegedly dealing in counterfeit goods and copyright-infringing files. The operation targeted the websites by proceeding in rem against their respective domain names. For websites targeted for copyright infringement, ICE Agents used recently-expanded copyright forfeiture remedies passed under the 2008 PRO-IP Act, providing no adversarial hearing prior to the websites being removed, and only a probable cause standard of proof.

This Paper examines three specific harms resulting from Operation In Our Sites, and …

The Human Right To Health And Hiv/Aids: South Africa And South-South Cooperation To Reframe Global Intellectual Property Principles And Promote Access To Essential Medicines, Erika George

Faculty Scholarship

The HIV/AIDS pandemic has had a devastating and disproportionate impact in countries of the Global South. The experience of an individual infected with HIV in Africa is very different than that of an individual infected with HIV in America. Life expectancy varies sharply. The ability or inability to access medicines essential for treatment accounts for much of the variance. This article examines how the rhetoric of human rights used in the context of South Africa's AIDS crisis resonated across the Global South, resulted in a powerful social movement for access to medicines, and contributed to important changes in international intellectual …

Improving Antibiotic Markets For Long Term Sustainability, Aaron S. Kesselheim, Kevin Outterson

Faculty Scholarship

The world faces a worsening public health crisis: A growing number of bacteria are resistant to available antibiotics. Yet there are few new antibiotics in the development pipeline to take the place of these increasingly ineffective drugs. We review a number of proposals intended to bolster drug development, including such financial incentives for pharmaceutical manufacturers as extending the effective patent life for new antibiotics. However, such strategies directly conflict with the clear need to reduce unnecessary antibiotic prescriptions and could actually increase prescription use. As an alternative, we recommend a two-prong, “integrated” strategy based on prizes administered through the insurance …

"We Know It When We See It": Intermediary Trademark Liability And The Internet, Stacey Dogan

Faculty Scholarship

The recent history of intermediary liability decisions in copyright and trademark law reflects a notable resistance to rules that might constrain judicial discretion to ferret out bad guys. Indeed, a dichotomy appears to be emerging between two types of defendants: those who want infringement to happen and those who do not. In both copyright and trademark cases, courts are developing two distinct sets of rules to deal with two different classes of intermediaries. Good-faith intermediaries — those with a core business model unrelated to infringement — have an obligation to address infringement upon notice, but need not go out of …

Extraterritorial Intellectual Property Enforcement In The European Union, Marketa Trimble

Scholarly Works

This paper was prepared for the 2011 ABILA International Law Weekend – West volume of the Southwestern Journal of International Law. It addresses extraterritorial enforcement of intellectual property rights in the European Union. The maximum length of the paper was set by the Journal.

The problems associated with extraterritorial enforcement of intellectual property rights in the European Union (the “EU”) may be divided into three categories: enforcement of unitary EU-wide rights, enforcement of multiple national rights, and enforcement of rights based on one national law with extraterritorial effects on activities in other countries. Although these are three distinct categories of …

Book Review. European Copyright Law: A Commentary., Marshall A. Leaffer

Articles by Maurer Faculty

No abstract provided.

Shaming Trademark Bullies, Leah Chan Grinvald

Scholarly Works

In September 2009, Hansen Beverage Company sent Rock Art Brewery a letter demanding that Rock Art cease and desist its use of “VERMONSTER” as a trademark for beer. Hansen is a multi-million dollar beverage corporation and Rock Art Brewery is a small brewing company owned by a husband-and-wife team based in Vermont. Hansen’s gravamen was that Rock Art’s “VERMONSTER” beer allegedly infringed on Hansen’s “MONSTER ENGERY” trademarks. Instead of capitulating, Rock Art Brewery fought back, taking to the virtual streets of the internet and galvanized public sentiment against Hansen’s. The end result was an amicable settlement agreement that allowed Rock …

Negativing Invention, Jacob S. Sherkow

Articles & Chapters

Since 1952, the patent statute has forbidden courts from discriminating against, or “negativing,” inventions according to how they were made, be it “long toil and experimentation” or a “flash of genius.” Now, in addressing whether an invention is “obvious,” courts must only examine whether the invention was obvious according to the arts pertinent to that invention — the “analogous” rather than “nonanalogous” arts. This article shows that this dichotomy has actually promoted method-of-invention discrimination in patent law because the subjectivity of the analogous art inquiry has increasingly “analogized” wide fields of prior art as technology has progressed. This, in turn, …

Competition Within Intellectual Property Regimes: The Instance Of Patent Rights, Rudolph J.R. Peritz

Articles & Chapters

No abstract provided.

Three Statutory Regimes At Impasse: Reverse Payments In Pay-For-Delay Settlement Agreements Between Brand-Name And Generic Drug Companies, Rudolph J.R. Peritz

Articles & Chapters

No abstract provided.

Knowledge And Education: Pro-Access Implications Of New Technologies, Dalindyebo Shabalala

School of Law Faculty Publications

This book examines the social impact of intellectual property laws. It addresses issues and trends relating to health, food security, education, new technologies, preservation of bio-cultural heritage and contemporary challenges in promoting the arts. It explores how intellectual property frameworks could be better calibrated to meet socio-economic needs in countries at different stages of development, with local contexts and culture in mind. A resource for policy-makers, stakeholders, non-profits and students, this volume furthermore highlights alternative modes of innovation that are emerging to address such diverse challenges as neglected or resurgent diseases in developing countries and the harnessing of creative possibilities …

Fair Use Challenges In Academic And Research Libraries, Peter Jaszi

Copyright, Fair Use & Open Access

Academic and research libraries are key players in the generation and propagation of knowledge in the U.S., and their interpretation of the balancing features of copyright is critical to the quality of research, teaching, and learning they support. Approaches and methods for research, teaching, and learning are changing rapidly with opportunities presented by digitization and Internet communication. Academic and research librarians need and use the balancing features of copyright—including exemptions listed in Sections 108 and 110 of the Copyright Act, as well as fair use (codified in Section 107)—in order to accomplish the routine tasks of their profession. This report …

Transparency Soup: The Acta Negotiating Process And "Black Box" Lawmaking, David S. Levine

Joint PIJIP/TLS Research Paper Series

The negotiations of the Anti-Counterfeiting Trade Agreement (ACTA) have been marred by a level of attempted secrecy heretofore unseen in international intellectual property lawmaking. Simultaneously, the Freedom of Information Act (FOIA) has been used in several significant national contexts to prevent the disclosure of data and information in ways that call into question its efficacy as an effective regulation of governmental knowledge. This paper seeks to tie together these two recent developments in order to (a) prevent future international intellectual property law negotiations from being unduly secret and (b) encourage Congress to consider reforming FOIA in light of current public …