Intellectual Property Law Commons^™

Copyright's Lost Art Of Substantial Similarity, Sandra M. Aistars

Vanderbilt Journal of Entertainment & Technology Law

Three copyright doctrines focus more than any others on the contributions of authors to visual artworks: originality, substantial similarity, and fair use. Questions regarding the aesthetics of works of authorship filter into judicial determinations under each of these doctrines. This Article comments on a trend among courts hearing visual arts cases to de-emphasize substantial similarity analyses and shift infringement determinations almost entirely to the fair use defense.

The trend has troubling procedural fairness consequences. Without a full evidentiary record about the artworks they encounter in infringement cases, courts’ ability to properly evaluate whether the use of appropriated material in a …

Measuring Follow-On Innovation, Janet Freilich, Sepehr Shahshahani

Faculty Scholarship

How patents affect follow-on innovation is a key question for the patent system. We disaggregate follow-on innovation into activities that infringe patents and others that do not infringe but can be indirectly affected by patents. Replicating an important study using our disaggregated measure, we find that 87 percent of follow-on scientific publications describing patented genes do not constitute patent infringement. Supplementing our empirical strategy with data on patent expiration dates, we find that gene patents which are not close to expiration cause an increase in noninfringing follow-on research, but the effect disappears for patents close to expiration. Our nuanced measure …

Infrostructure(S): Administering Information, Kali Murray

Buffalo Law Review

This Article, Infrostructure(s): Administering Information, considers how authoritative entities generate, manage, and produce informational structures, facilities, and architectures that support market creation and creative economy decision-making between private parties and entities. The term infrostructure, as opposed to other terms, such as infostructure and infosphere, suggests that infrostructures play vital roles in modern democratic life including producing new information resources, facilitating private transactions between private parties, and building the administrative state.

This Article is divided into two parts. Part I discusses how information regulation is mediated through information forms and information systems with a focus on the materialities of information forms …

Executive Order On The Safe, Secure, And Trustworthy Development And Use Of Artificial Intelligence, Joseph R. Biden

Copyright, Fair Use, Scholarly Communication, etc.

Section 1. Purpose. Artificial intelligence (AI) holds extraordinary potential for both promise and peril. Responsible AI use has the potential to help solve urgent challenges while making our world more prosperous, productive, innovative, and secure. At the same time, irresponsible use could exacerbate societal harms such as fraud, discrimination, bias, and disinformation; displace and disempower workers; stifle competition; and pose risks to national security. Harnessing AI for good and realizing its myriad benefits requires mitigating its substantial risks. This endeavor demands a society-wide effort that includes government, the private sector, academia, and civil society.

My Administration places the highest urgency …

Copyright And Generative Ai: Insights From The Project On The Right To Research, Sean M. Fiil-Flynn

Joint PIJIP/TLS Research Paper Series

With the widespread launch of “generative AI” technology capable of creating music, art and text that could potentially substitute for the work of human creators, policy makers around the world are highly focused on how and whether copyright law should change in response. This paper summarizes results from studies that have been commissioned as part of the Project on the Right to Research in International Copyright coordinated by American University’s Program on Information Justice and Intellectual Property. That project focuses on uses of copyrighted works in text and data mining technology by scientific researchers. The same text and data mining …

The Economics Of Medical Patents And The U.S. Government’S Role In Drug Price Negotiations, Eddie Halwani

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

The U.S. government’s recent but unusual push to negotiate drug prices has struck a chord with many Americans, with polls showing a significant, bipartisan majority favoring the action.This action presents an opportunity to appreciate medical patents’ role in spurring innovation forward. Amid changing policies, medical patents shape the accessibility and affordability of care through their impact on drug pricing. Drug prices in the United States are notably high—about 2.4 times those in other developed countries.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on October 24, 2023. The original post can be accessed via …

Signs Of Life: The Current State Of Generative Content And Copyright Protection, Ryan Bickett

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

With the recent rise in Artificial Intelligence (“AI”) and its broadening use by the public, questions have arisen regarding the applicability of copyright law over both the content it sources and creates. While the answers remain unclear as this technology rapidly updates, there have been recent legal developments which will shape how we deal with this content.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on October 24, 2023. The original post can be accessed via the Archived Link button above.

Developing A Human Right To Research In International Law, Sanya Samtani

Joint PIJIP/TLS Research Paper Series

The covid-19 pandemic has highlighted issues concerning equitable access to and participation in research. But research has always been indispensable to human development. To what extent does international law guarantee access to research as well as the practice of researching? Drawing on the social anthropology definition of research as the pursuit of that which is not yet known, this paper locates a novel human right to research within the core international human rights covenants. The paper sets out the scope and content of the right and the nature and content of State obligations flowing from it. It concludes by outlining …

Integrating Nist And Iso Cybersecurity Audit And Risk Assessment Frameworks Into Cameroonian Law, Bernard Ngalim

Journal of Cybersecurity Education, Research and Practice

This paper reviews cybersecurity laws and regulations in Cameroon, focusing on cybersecurity and information security audits and risk assessments. The importance of cybersecurity risk assessment and the implementation of security controls to cure deficiencies noted during risk assessments or audits is a critical step in developing cybersecurity resilience. Cameroon's cybersecurity legal framework provides for audits but does not explicitly enumerate controls. Consequently, integrating relevant controls from the NIST frameworks and ISO Standards can improve the cybersecurity posture in Cameroon while waiting for a comprehensive revision of the legal framework. NIST and ISO are internationally recognized as best practices in information …

Copyright Fiduciaries: Problems And Solutions, Jessica Silbey

Faculty Scholarship

Andrew Gilden & Eva E. Subotnik, Copyright’s Capacity Gap, 57 U.C. Davis L. Rev. __ (forthcoming, 2023), available at SSRN (Aug. 9, 2023).

In this forthcoming article, Andrew Gilden and Eva Subotnik begin an important conversation about an underexplored area of copyright law. Their focus is copyright law’s inconsistent treatment of mental capacity. Under copyright law, copyright authors can produce valuable copyrighted work but those same authors may lack the legal capacity to make decisions about if, when, or how to exploit that work. For example, children and people with mental illness or disability can be copyright authors, but …

I Can’T Believe It’S Not Skittles! Broad Summary Of Advertising And Packaging Regulations For Cannabis Dispensaries In New York State, Lauren Woods

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

Newly passed legislation often represents the changing nature of public opinion and societal attitudes. In New York State, for example, the general public’s softening and more accepting view of marijuana consumption was highlighted when the state approved legal marijuana use in a medical setting in 2014. Seven years later, New York State passed the Marihuana Regulation & Taxation Act (“MTRA”) and officially legalized “the possession of adult-use recreational cannabis for all adults over the age twenty-one.” A highlight of the act is how it addresses how the current state of cannabis regulation in the state is suboptimal, and how its …

The Aftermath Of Murphy V. Ncaa: State And Congressional Reactions To Leaving Sports Gambling Regulation To The States, Ethan Mordekhai

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

In 2018, the Supreme Court ruled in Murphy v. NCAA that the Professional and Amateur Sports Protection Act of 1992 (“PAPSA”) violated the anti-commandeering rule and was therefore unconstitutional. PAPSA had effectively barred states from authorizing sports gambling. The act did not make sports gambling a federal crime, however it did allow professional sports organizations to bring civil actions to enjoin violations. Thus, after the New Jersey legislature authorized sports gambling in 2012, the NCAA brought a federal action to enjoin the law on the ground that it violated PAPSA. The case made its way to the Supreme Court, and …

Implementation Of A Federated Information System By Means Of Reuse Of Research Data Archived In Research Data Repositories, Sylvia Melzer, Stefan Thiemann, Simon Schiff, Ralf Möller

Copyright, Fair Use, Scholarly Communication, etc.

At universities, research data is increasingly stored in research data repositories according to a data management plan (DMP) and thus made available for further use. The challenge of reusing hundreds, thousands, or millions of data sets is to obtain an overview of the data in a short period of time and to search through all the data. The high variability of the formats used to store research data requires a new approach to data reusability that focuses on the visualisation and searchability of archived research data, which can also be combined with each other. In this article, we present a …

Mpp Covid-19 Antiviral Medicines Licenses – Licensed Territories, Supply Options For Excluded Territories, And Supply Barriers Arising From Trade-Secret Transfer, Brook K. Baker

Joint PIJIP/TLS Research Paper Series

This is a paper that analyzes Medicine Patent Pool licenses for three COVID-19 antivirals, including licensed territories, patent landscapes, supply options, regulatory status, and supply barriers arising from licensee acceptance of trade-secret information from the originator licensor. It concludes that at present there is no existing WHO prequalified licensee that can supply nirmatrelvir + ritonavir outside the Pfizer licensed territory, whereas there are potential molnupiravir licensees that can supply outside licensed territories where there is no blocking patent exists or a compulsory license has been issued in the country of import or use. The paper concludes with an assessment that …

Updating The Berne Convention For The Internet Age: Un-Blurring The Line Between United States And Foreign Copyrighted Works, Ethan Schow

Brigham Young University Journal of Public Law

John Naughton, notable journalist and academic, has asserted that “[common sense] should also revolt at the idea that doctrines about copyright that were shaped in a pre-Internet age should apply to a post-Internet one.” And yet, in crucial aspects of international law, this is the situation in which the world finds itself today. The Berne Convention for the Protection of Literary and Artistic Works (the “Berne Convention” or the “Convention”) is one of the most important multinational agreements concerned with copyright law, but it has not been amended since September 28, 1979. Although the internet technically existed in an early …

What Happens When The Public Wants To Remove Public Art? The Second Circuit Weighs In On One Recent Vara Case, Paige Green

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

n 1990, the Visual Artists’ Rights Act (VARA) became a welcome addition to the federal Copyright Act of 1976. VARA was the first time the “moral rights” of an artist were federally protected in the United States. Moral rights are commonly understood to provide attribution to artists and protect the integrity of visual art pieces. Under VARA, this means authors have a right to claim authorship on pieces they create, prevent the use of their name on a work they did not create, and prohibit the destruction of works of “recognized statute” (both intentional and through gross negligence). The law …

Cardozo Aelj Author Interview Series: Seth Warshaw, Class Of 2023, Seth Warshaw

Cardozo Arts & Entertainment Law Journal (AELJ) Blog

The Cardozo AELJ Author Interview Series seeks to give our readers further insight into the Articles and Notes published in the Cardozo Arts & Entertainment Law Journal. In this interview, Seth Warshaw discusses his Note, And a Second Opinion for All… And Anything Else? The Jack Eichel Saga and Issues of Medical Autonomy, which was published in Volume 41, Issue 1.

This post was originally published on the Cardozo Arts & Entertainment Law Journal website on October 10, 2023. The original post can be accessed via the Archived Link button above.

Ohio's Data Protection Act And/As A Process-Based Approach To "Reasonable" Security, Brian Ray

Akron Law Review

This essay argues that the ODPA [Ohio Data Protection Act], which has become a model for similar laws and legislative proposals in several other states, in effect creates a process-based standard for cybersecurity. It does so by incorporating the risk-based approach used by the listed cybersecurity frameworks as the defacto standard for reasonable security for organizations seeking to qualify for the Act’s affirmative defense. This article summarizes the ODPA and then explains the risk-based approach of the cybersecurity frameworks it incorporates. It then argues that this risk-based approach in effect establishes a process-based definition of reasonable security and explains why …

Security In The Digital Age, Michael Gentithes

Akron Law Review

Rapidly evolving technology allows governments and businesses to elevate our collective well-being in ways we could not have imagined just decades ago. Data is now a resource that governments and businesses alike can mine to address the world’s needs with greater efficiency, accuracy, and flexibility. But evolving technology and advanced data analytics also come with risk. New digital capabilities also create new means for nefarious actors to infiltrate the complex technological systems at the heart of nearly all of our daily activities. Just as new digital tools emerge to offer unique goods and services, new tools allow wrongdoers to invade …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents