INTELLECTUAL PRIVILEGE: Copyright, Common Law, and The
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International Intellectual Property Law
ee--RRGG Electronic Resource Guide International Intellectual Property Law * Jonathan Franklin This page was last updated February 8, 2013. his electronic resource guide, often called the ERG, has been published online by the American Society of International Law (ASIL) since 1997. T Since then it has been systematically updated and continuously expanded. The chapter format of the ERG is designed to be used by students, teachers, practitioners and researchers as a self-guided tour of relevant, quality, up-to-date online resources covering important areas of international law. The ERG also serves as a ready-made teaching tool at graduate and undergraduate levels. The narrative format of the ERG is complemented and augmented by EISIL (Electronic Information System for International Law), a free online database that organizes and provides links to, and useful information on, web resources from the full spectrum of international law. EISIL's subject-organized format and expert-provided content also enhances its potential as teaching tool. 2 This page was last updated February 8, 2013. I. Introduction II. Overview III. Research Guides and Bibliographies a. International Intellectual Property Law b. International Patent Law i. Public Health and IP ii. Agriculture, Plant Varieties, and IP c. International Copyright Law i. Art, Cultural Property, and IP d. International Trademark Law e. Trade and IP f. Arbitration, Mediation, and IP g. Traditional Knowledge and IP h. Geographical Indications IV. General Search Strategies V. Primary Sources VI. Primary National Legislation and Decisions VII. Recommended Link sites VIII. Selected Non-Governmental Organizations IX. Electronic Current Awareness 3 This page was last updated February 8, 2013. -
Saving the Information Commons a New Public Intere S T Agenda in Digital Media
Saving the Information Commons A New Public Intere s t Agenda in Digital Media By David Bollier and Tim Watts NEW AMERICA FOUNDA T I O N PUBLIC KNOWLEDGE Saving the Information Commons A Public Intere s t Agenda in Digital Media By David Bollier and Tim Watts Washington, DC Ack n owl e d g m e n t s This report required the support and collaboration of many people. It is our pleasure to acknowledge their generous advice, encouragement, financial support and friendship. Recognizing the value of the “information commons” as a new paradigm in public policy, the Ford Foundation generously supported New America Foundation’s Public Assets Program, which was the incubator for this report. We are grateful to Gigi Sohn for helping us develop this new line of analysis and advocacy. We also wish to thank The Open Society Institute for its important support of this work at the New America Foundation, and the Center for the Public Domain for its valuable role in helping Public Knowledge in this area. Within the New America Foundation, Michael Calabrese was an attentive, helpful colleague, pointing us to useful literature and knowledgeable experts. A special thanks to him for improv- ing the rigor of this report. We are also grateful to Steve Clemons and Ted Halstead of the New America Foundation for their role in launching the Information Commons Project. Our research and writing of this report owes a great deal to a network of friends and allies in diverse realms. For their expert advice, we would like to thank Yochai Benkler, Jeff Chester, Rob Courtney, Henry Geller, Lawrence Grossman, Reed Hundt, Benn Kobb, David Lange, Jessica Litman, Eben Moglen, John Morris, Laurie Racine and Carrie Russell. -
Circular 1 Copyright Basics
CIRCULAR 1 Copyright Basics Copyright is a form of protection Copyright is a form of protection provided by the laws of the provided by U.S. law to authors of United States to the authors of “original works of authorship” that are fixed in a tangible form of expression. An original “original works of authorship” from work of authorship is a work that is independently created by the time the works are created in a a human author and possesses at least some minimal degree of creativity. A work is “fixed” when it is captured (either fixed form. This circular provides an by or under the authority of an author) in a sufficiently overview of basic facts about copyright permanent medium such that the work can be perceived, and copyright registration with the reproduced, or communicated for more than a short time. Copyright protection in the United States exists automatically U.S. Copyright Office. It covers from the moment the original work of authorship is fixed.1 • Works eligible for protection • Rights of copyright owners What Works Are Protected? • Who can claim copyright • Duration of copyright Examples of copyrightable works include • Literary works • Musical works, including any accompanying words • Dramatic works, including any accompanying music • Pantomimes and choreographic works • Pictorial, graphic, and sculptural works • Motion pictures and other audiovisual works • Sound recordings, which are works that result from the fixation of a series of musical, spoken, or other sounds • Architectural works These categories should be viewed broadly for the purpose of registering your work. For example, computer programs and certain “compilations” can be registered as “literary works”; maps and technical drawings can be registered as “pictorial, graphic, and sculptural works.” w copyright.gov note: Before 1978, federal copyright was generally secured by publishing a work with an appro- priate copyright notice. -
The Constitutional Law of Intellectual Property After Eldred V. Ashcroft
The Constitutional Law of Intellectual Property After Eldred v. Ashcroft By Pamela Samuelson* I. Introduction The past decade has witnessed an extraordinary blossoming of scholarship on the constitutional law of intellectual property,1 much of which focuses on copyright law.2 Had the Supreme Court ruled in favor of Eldred’s challenge to the constitutionality of the Copyright Term Extension Act,3 this body of scholarship would have undoubtedly proliferated with alacrity. Many scholars would have been eager to offer interpretations of implications of an Eldred-favorable decision for other intellectual property disputes.4 Given the Ashcroft-favorable outcome, some may expect the Eldred decision to “deconstitutionalize” intellectual property law and reduce to a trickle further scholarly * Chancellor’s Professor of Law and Information Management, University of California at Berkeley. Research support for this article was provided by NSF Grant No. SES 9979852. I wish to thank Eddan Katz for his exceptional research assistance with this article. 1 See, e.g., Dan L. Burk, Patenting Speech, 79 Tex. L. Rev. 99 (2000); Paul J. Heald and Suzanna Sherry, Implied Limits on the Legislative Power: The Intellectual Property Clause as an Absolute Constraint on Congress, 2000 U. Ill. L. Rev. 1119 (2000); Robert Patrick Merges and Glenn Harlan Reynolds, The Proper Scope of the Copyright and Patent Power, 37 J. Legis. 45 (2000); Mark A. Lemley, The Constitutionalization of Technology Law, 15 Berkeley Tech. L.J. 529 (2000); Malla Pollack, Unconstitutional Incontestability? The Intersection Of The Intellectual Property And Commerce Clauses Of The Constitution: Beyond A Critique Of Shakespeare Co. v. -
ELDRED V. ASHCROFT: the CONSTITUTIONALITY of the COPYRIGHT TERM EXTENSION ACT by Michaeljones
COPYRIGHT ELDRED V. ASHCROFT: THE CONSTITUTIONALITY OF THE COPYRIGHT TERM EXTENSION ACT By MichaelJones On January 15, 2003, the Supreme Court upheld the constitutionality of the Copyright Term Extension Act ("CTEA"), which extended the term of copyright protection by twenty years.2 The decision has been ap- plauded by copyright protectionists who regard the extension as an effec- tive incentive to creators. In their view, it is a perfectly rational piece of legislation that reflects Congress's judgment as to the proper copyright term, balances the interests of copyright holders and users, and brings the3 United States into line with the European Union's copyright regime. However, the CTEA has been deplored by champions of a robust public domain, who see the extension as a giveaway to powerful conglomerates, which runs contrary to the public interest.4 Such activists see the CTEA as, in the words of Justice Stevens, a "gratuitous transfer of wealth" that will impoverish the public domain. 5 Consequently, Eldred, for those in agree- ment with Justice Stevens, is nothing less than the "Dred Scott case for 6 culture." The Court in Eldred rejected the petitioners' claims that (1) the CTEA did not pass constitutional muster under the Copyright Clause's "limited © 2004 Berkeley Technology Law Journal & Berkeley Center for Law and Technology. 1. Sonny Bono Copyright Term Extension Act, 17 U.S.C. §§ 108, 203, 301-304 (2002). The Act's four provisions consider term extensions, transfer rights, a new in- fringement exception, and the division of fees, respectively; this Note deals only with the first provision, that of term extensions. -
The Syntheist Movement and Creating God in the Internet Age
1 I Sing the Body Electric: The Syntheist Movement and Creating God in the Internet Age Melodi H. Dincer Senior Thesis Brown University Department of Religious Studies Adviser: Paul Nahme Second Reader: Daniel Vaca Providence, Rhode Island April 15, 20 2 Table of Contents Acknowledgments. 3 Introduction: Making the Internet Holy. .4 Chapter (1) A Technophilic Genealogy: Piracy and Syntheism as Cybernetic Offspring. .12 Chapter (2) The Atheist Theology of Syntheism . 49 Chapter (3) Enacted Syntheisms: An Ethics of Active Virtuality and Virtual Activity. 96 (In)Conclusions. 138 Works Cited. 144 3 Acknowledgments I would briefly like to thank anyone who has had a hand—actually, even the slightest brush of a finger in making this project materialize outside of the confines of my own brain matter. I would first like to thank Kerri Heffernan and my Royce Fellowship cohort for supporting my initial research on the Church of Kopimism. My time in Berlin and Stockholm on behalf of the Royce made an indelible mark on my entire academic career thus far, without which this thesis would definitely not be as out-of-the-box as it is proud to be. I would also like to thank a few professors in the Religious Studies department who, whether they were aware of it or not, encouraged my confidence in this area of study and shaped how I approached the religious communities this project concerns. Specifically, thank you to Prof. Denzey-Lewis, who taught my first religious studies course at Brown and graciously sponsored my Royce research amidst her own travels. Also, infinite thanks and blessings to Fannie Bialek, who so deftly modeled all that is good in this discipline, and all that is most noble in the often confusing, frustrating, and stressful task of teaching “hard” topics. -
Az Enyém, a Tied És a Miénk a Szellemi Tulajdonban
Bobrovszky Jenő Az enyém, a tied és a miénk a szellemi tulajdonban Áttekintés a közkincs és a szellemi magántulajdon egyes összefüggéseiről az Internet tükrében Mottó - „Az enyim, a tied mennyi lármát szüle, Miolta a miénk nevezet elüle.” (Csokonai Vitéz Mihály: Az estve) - Salus populi suprema lex (A legfőbb törvény a közjó). (Cicero, a XII táblás törvény nyomán) - „Une oevre ne tombe pas dans le domaine public. Elle s´y élève.” (Egy mű nem hullik a közkincsbe, hanem oda felemelkedik.) (Francia weblap mottója) Megjegyzés: Ezt a szakmai esszét, amely most elektronikus formában, szélesebb körben válik hozzáférhetővé, eredeti változatában a Gyertyánfy Péter kedves barátom és nagyszerű kollegám tiszteletére az ELTE ÁJK Polgári Jogi Tanszéke által megjelentetett Liber Amicorumba írtam 2008 januárjában, az ünnepi dolgozatokhoz illően komoly témáról, de könnyed, olvasmányosnak szánt, baráti stílusban. Köszönet: Köszönetemet fejezem ki Dr. Faludi Gábornak és Dr. Gödölle Istvánnak, akik értékes észrevételeikkel hozzájárultak az anyag csiszolásához. Ha ennek ellenére nem elég fényes, az az én hibám. Köszönöm továbbá Párkányi Máriának az általam gépelt kézirat „szépítgetését”. 1 I. A téma, a cím és a műfaj magyarázata 1. A téma 1.1. Közismert tény, hogy a szellemi tulajdon jelentőségének ugrásszerű felértékelődése az elmúlt 10-15 évben ment végbe. Addig csendes, szunyókáló, csak szűk körű szakembergárdának érthető, elitista jogterület volt, ahogy egyesek ironikusan mondják, „a szabadalmi és szerzői jogászok homokozója”. A 90-es évek elejétől kezdve azonban a szellemi tulajdon addig perifériális témaköre a Kereskedelmi Világszervezetben (World Trade Organization=WTO) a nemzetközi kereskedelmi politika egyik központi kérdésévé vált. A szellemi javak privatizációjával és kommercializálásával kapcsolatos új, fokozottabb követelmények a szellemi tulajdonjogok világkereskedelmi vonatkozásait szabályozó, globális hatályú un.TRIPS Megállapodásban (a továbbiakban: TRIPS=Agreement on Trade-Related Aspects of Intellectual Property Rights) nyertek kifejezést. -
Congress's Power to Promote the Progress of Science: Eldred V. Ashcroft
Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2002 Congress's Power to Promote the Progress of Science: Eldred v. Ashcroft Lawrence B. Solum Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/879 http://ssrn.com/abstract=337182 36 Loy. L.A. L. Rev. 1-82 (2002) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Constitutional Law Commons, and the Intellectual Property Law Commons CONGRESS'S POWER TO PROMOTE THE PROGRESS OF SCIENCE: ELDRED V. ASHCROFT* Lawrence B. Solum** I. INTRODUCTION: ELDRED V. ASHCROFT ................................... 3 A. The Sonny Bono Copyright Term Extension Act ................. 4 B. ProceduralHistory ............................................................ 7 II. A TEXTUAL AND HISTORICAL ANALYSIS OF THE COPYRIGHT C LA U SE .......................................................................................... 10 A. The Structure of the Clause .................................................... 11 1. The parallel construction of the copyright and patent powers in the Intellectual Property Clause .................... 11 2. The structure of the Copyright Clause ........................... 12 * © 2002 by the Author. Permission is hereby granted to duplicate this Essay for classroom use and for the inclusion of excerpts of any length in edu- cational materials of any kind, so long as the author and original publication is clearly identified and this notice is included. Permission for other uses may be obtained from the Author. ** Visiting Professor of Law, University of San Diego School of Law and Professor of Law and William M. Rains Fellow, Loyola Law School, Loyola Marymount University. -
Monetizing Infringement
University of Colorado Law School Colorado Law Scholarly Commons Articles Colorado Law Faculty Scholarship 2020 Monetizing Infringement Kristelia García University of Colorado Law School Follow this and additional works at: https://scholar.law.colorado.edu/articles Part of the Entertainment, Arts, and Sports Law Commons, Intellectual Property Law Commons, Law and Economics Commons, and the Legislation Commons Citation Information Kristelia García, Monetizing Infringement, 54 U.C. DAVIS L. REV. 265 (2020), available at https://scholar.law.colorado.edu/articles/1308. Copyright Statement Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required. This Article is brought to you for free and open access by the Colorado Law Faculty Scholarship at Colorado Law Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Colorado Law Scholarly Commons. For more information, please contact [email protected]. Monetizing Infringement Kristelia García* The deterrence of copyright infringement and the evils of piracy have long been an axiomatic focus of both legislators and scholars. The conventional view is that infringement must be curbed and/or punished in order for copyright to fulfill its purported goals of incentivizing creation and ensuring access to works. This Essay proves this view false by demonstrating that some rightsholders don’t merely tolerate, but actually encourage infringement, both explicitly and implicitly, in a variety of different situations and for one common reason: they benefit from it. -
The Freedom to Copy: Copyright, Creation, and Context
The Freedom to Copy: Copyright, Creation, and Context Olufunmilayo B. Arewa* Although much separates them musically, George Harrison and Michael Bolton share a common legal fate. Both have been held liable in copyright infringement cases in which a court articulated theories of liability based on subconscious infringement. This Article discusses how decisions in the Bolton, Harrison, and other copyright infringement cases reflect a common failing. Such decisions highlight the incomplete nature of the theories of creativity and creation processes in copyright doctrine. After discussing current approaches to questions of creation, this Article suggests ways in which copyright theory can better incorporate a contextualized understanding of creativity and creation processes. Creativity in copyright is frequently characterized as not involving copying, which is typically thought to be antithetical to both originality and creativity. This stigmatization of copying, however, means that copyright theory cannot adequately account for the reality of not infrequent similarities between works that are a result of copying both ideas and expression in the creation of new works. This missing theoretical link has significant implications for copyright in practice. The lack of legal analysis of the full range of creativity and processes of creation is also a major reason why copyright theory often has such difficulty delineating what constitutes appropriate and inappropriate copying of existing works. * Associate Professor, Northwestern University School of Law. A.B. Harvard College; M.A. Anthropology, Ph.D. Anthropology, University of California, Berkeley; A.M. Applied Economics, University of Michigan; J.D., Harvard Law School. For their helpful comments and suggestions on earlier drafts, I am indebted to Margaret Chon, Julie Cohen, Paul Heald, Kevin Jon Heller, Andrew Koppelman, Roberta Rosenthal Kwall, Jacqueline Lipton, Andrew P. -
The Origins and Meaning of the Intellectual Property Clause
THE ORIGINS AND MEANING OF THE INTELLECTUAL PROPERTY CLAUSE Dotan Oliar* ABSTRACT In Eldred v. Ashcroft (2003) the Supreme Court reaffirmed the primacy of historical and textual considerations in delineating Congress’ power and limitations under the Intellectual Property Clause. Nevertheless, the Court overlooked what is perhaps the most important source of information regarding these considerations: The debates in the federal Constitutional Convention that led to the adoption of the Clause. To date, several unsettled questions stood in the way of identifying fully the legislative history behind the Clause. Thus, the Article goes through a combined historical and quantitative fact-finding process that culminates in identifying eight proposals for legislative power from which the Clause originated. Having clarified the legislative history, the Article proceeds to examine the process by which various elements of these proposals were combined to produce the Clause. This process of textual putting together reveals, among other things, that the text “promote the progress of science and useful arts” serves as a limitation on Congress’ power to grant intellectual property rights. The Article offers various implications for intellectual property doctrine and policy. It offers a model to describe the power and limitations set in the Clause. It examines the way in which Courts have enforced the limitations in the Clause. It reveals a common thread of non-deferential review running through Court decisions to date, for which it supplies normative justifications. It thus concludes that courts should examine in future and pending cases whether the Progress Clause’s limitation has been overreached. Since Eldred and other cases have not developed a concept of progress for the Clause yet, the Article explores several ways in which courts could do so. -
Chapter 1: Synthesis
7 | SYNTHESIS CHAPTER 1. SYNTHESIS This chapter provides the rationale and context for Enquiries into Intellectual Property’s Economic Impact and highlights its most significant findings. In doing so, the chapter presents the major themes of the overall report, which are 1) the importance of various types of intellectual property as sources of growth and innovation in today’s economies; and 2) the effects on IP systems and stakeholders of major developments such as content digitisation, the growth of the Internet, and globalisation. The statistical data for Israel are supplied by and under the responsibility of the relevant Israeli authorities or third party. The use of such data by the OECD is without prejudice to the status of the Golan Heights, East Jerusalem and Israeli settlements in the West Bank under the terms of international law. It should be noted that statistical data on Israeli patents and trademarks are supplied by the patent and trademark offices of the relevant countries. ENQUIRIES INTO INTELLECTUAL PROPERTY'S ECONOMIC IMPACT © OECD 2015 8 | SYNTHESIS EXECUTIVE SUMMARY Key challenges • Copyright appears to be the type of IP that has been attracting business investment at the highest growth rate and it is undergoing statutory review in many countries, yet there are fewer empirical studies about copyright than about patents. Encouraging and enabling the collection and availability of more data on copyright would facilitate data-driven copyright policy. In fact, robust evidence on the use of IP rights generally and on their economic and social impacts is essential for sound IP systems. Presently, however, relatively little concrete evidence is available to support the common assumption that IP rights encourage greater innovation and creativity.