ERPN: Copyright & Trademark (Sub-Topic)最新文献

{"title":"Ignoring Drug Trademarks","authors":"Erika Lietzan","doi":"10.2139/ssrn.3863737","DOIUrl":"https://doi.org/10.2139/ssrn.3863737","url":null,"abstract":"If you walk into a pharmacy with a prescription for Merck’s ZOCOR, which contains simvastatin, the pharmacist will probably give you a product containing simvastatin made by another company. The pharmacist will dispense a “generic” simvastatin product. State generic substitution laws, passed in the 1970s to help the government save money by switching patients to cheaper generic drugs, either permit or require this substitution. But drug brand names -- such as ZOCOR -- are trademarks. Like other trademarks, they distinguish goods in the market from others, and they signal the source of the goods. These state laws essentially treat the words as something else. As soon as generic drugs are available, state law instructs the pharmacist to read the brand name -- written by the doctor -- as an instruction to dispense a different company's product. This is the opposite of how trademarks are supposed to operate. This Article examines the history of substitution and drug trademarks over the last century and a half, as well as the relationship between the two, against the backdrop of an evolving drug industry, an evolving drug regulatory framework, and improvements in regulatory science. It shows that the generic drug substitution laws are an anomaly in our legal system. Substitution at the pharmacy was illegal, and it still is otherwise illegal. The substitution laws of the 1970s created an exception in pharmacy law and broke with long-standing policy in food and drug law as well as unfair competition law. This Article also shows that the substitution laws were intended to, and did, undermine proprietary (trademark) rights. This was done to achieve savings for payers, after efforts to mandate generic prescribing failed. As the Article points out, much has changed since the 1970s. The regulatory framework has changed, regulatory science has evolved, drug research and development has evolved, the industries have changed, the healthcare finance system is utterly different, the relationship among parties in healthcare delivery has evolved, and so on. The Article therefore concludes by reconsidering (and criticizing) the exception for generic drug substitution, with the benefit of a clear understanding of the relationship between a brand drug and its generic equivalents and a clear understanding of the role for drug trademark after patents have expired. The exception prioritizes short-term cost savings over the dynamic pro-competitive benefits of a properly functioning trademark system. And although the laws are more than 40 years old, this point is important today, because hostility to drug trademarks and devotion to generic substitution laws inform scholarship and policy proposals today.","PeriodicalId":152078,"journal":{"name":"ERPN: Copyright & Trademark (Sub-Topic)","volume":"144 3","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132089748","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Diritto d’autore e accesso all’informazione giornalistica: accanimento o lungimiranza del legislatore comunitario? (Copyright Protection and Access to News Information: Dogged Determination or Prescient Vision of the EU Legislator?)","authors":"Giulia Priora","doi":"10.2139/ssrn.3805763","DOIUrl":"https://doi.org/10.2139/ssrn.3805763","url":null,"abstract":"<b>Italian abstract:</b> L’industria giornalistica sta vivendo una transizione epocale verso il mercato digitale. I contenuti editoriali, tanto su carta quanto online, si confermano risorsa essenziale e potenzialmente molto redditizia nei mercati dell’informazione e vero e proprio pilastro per la società democratica. Se finora il ruolo giocato dal diritto d’autore nel proteggere ed incentivare la produzione di articoli giornalistici è rimasto per lo più nella penombra, l’avvento di nuove forme di utilizzo online ha acceso i riflettori proprio sulla tutela autoriale come possibile panacea ai profondi squilibri economici di cui è vittima il settore giornalistico. A fronte di interventi legislativi in questa direzione, primo fra tutti l’Articolo 15 della Direttiva UE sul Diritto D’Autore nel Mercato Unico Digitale del 2019, l’articolo si propone di contestualizzare e valutare in maniera critica l’efficacia di tale scelta riformatrice, ripercorrendo e sistematizzando la normativa comunitaria ed italiana sul diritto d’autore in ambito giornalistico, studiandone aspetti salienti e funzioni perseguite ed offrendo supporto all’interpretazione giuridica in vista dell’imminente implementazione nazionale della recente Direttiva.<br><br><b>English abstract:</b> The press industry is undergoing a remarkable transition towards the digital dimension. Newspapers, periodicals, and digital press content are consolidating their role as an essential resource, potentially highly profitable asset, and beacon of democratic values in our societies. The role played by copyright law in the press sector has been largely unchallenged, mostly deemed to be constrained within the need to incentivize the production of press articles and protect investments. However, the expansion of online uses of press content has shed light on copyright’s potential to solve rising economic imbalances. Article 15 of the most recent Directive on Copyright in the Digital Single Market (CDSM) is a glaring example of this new course of action. Against this background, the article aims to contextualize and critically assess the adequacy and effectiveness of the normative evolution of copyright law vis-à-vis press content at both EU and national level. By retracing the relevant legislation and highlighting focal points in the modern discourse on copyright’s role and functions, the analysis provides insightful interpretative guidance in light of the upcoming implementation of the CDSM Directive.","PeriodicalId":152078,"journal":{"name":"ERPN: Copyright & Trademark (Sub-Topic)","volume":"258 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134255911","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"On the Market: Using Trademarks to Reveal Organizational Assets, Strategies and Capabilities","authors":"C. Castaldi","doi":"10.2139/ssrn.3255864","DOIUrl":"https://doi.org/10.2139/ssrn.3255864","url":null,"abstract":"Firms increasingly rely upon trademarks, but research exploiting trademark data is still rather limited and scattered across research domains. Yet, there is an emerging understanding that trademark data can be used to capture several elements of how, when and to what extent firms bring (new) products and services to the market. This paper integrates existing firm-level empirical studies that use trademarks to operationalize organizational constructs. The review reveals that researchers have used trademark-based indicators to operationalize three distinct sets of organizational constructs: assets, market strategies and capabilities. These both complement and substitute organizational constructs often captured by patents. The paper sketches several avenues for further conceptual research and key data opportunities and challenges.","PeriodicalId":152078,"journal":{"name":"ERPN: Copyright & Trademark (Sub-Topic)","volume":"81 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134562263","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Law and Economics of Copyright Law and Copyright Exceptions, Limitations, and Immunities","authors":"G. Barker","doi":"10.2139/ssrn.3315619","DOIUrl":"https://doi.org/10.2139/ssrn.3315619","url":null,"abstract":"This paper provides a brief review of the law and economics of Copyright Law and Copyright Exceptions, Limitations, and Immunities. \u0000 \u0000Copyright law requires the creator’s consent to copy, publish, convey, transfer or profit from their original work. Copyright exceptions are legal limitations on the requirement that the prior consent, or authorization of the rights holder is necessary to make use of creative works. Copyright exceptions thus permit certain acts (uses) which would otherwise constitute an infringement of the exclusive right to copy. Copyright exceptions characterize the circumstances in which copyright will not be infringed by an unauthorized reproduction or presentation of creative works. Copyright limitations limit the scope or duration copyright holders rights. Copyright immunities remove the sanctions imposed for breach of copyright law obligations e.g. immunity from civil damages. \u0000 \u0000This paper consists of three sections: \u0000 \u0000• First we briefly examine the origin and nature of copyright law, and copyright exceptions; and \u0000• Second we briefly examine the economic rationale for copyright; \u0000• Third we examine the rationale for copyright exceptions, (including the “fair use” rule), and various other limitations, and immunities (such as “safe harbours”) in detail. \u0000 \u0000In the third section we discuss a number of economic rationales advanced for copyright exceptions, limitations and immunities including: \u0000 \u0000- Transaction costs Rationales - Monopoly Pricing Rationales \u0000- Non-Rivalry and Non-divisibility rationales - Indirect Appropriability Rationales and \u0000- Externalities rationales including network externalise and anti-commons rationales \u0000 \u0000The paper concludes that the economic case for greater copyright exceptions, (including the “fair use” rule), and various other limitations, and immunities (such as “safe harbours”) has been overstated.","PeriodicalId":152078,"journal":{"name":"ERPN: Copyright & Trademark (Sub-Topic)","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127471899","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"How Does Public IPR Protection Affect Its Private Counterpart? Copyright and the Firms' Own IPR Protection in a Software Duopoly","authors":"Krešimir Žigić, Jiří Střelický, Michael Kúnin","doi":"10.2139/ssrn.2507415","DOIUrl":"https://doi.org/10.2139/ssrn.2507415","url":null,"abstract":"We study how the strength of public intellectual property rights (IPR) protection against software piracy (copyright protection) affects private IPR protection (that software developers may themselves undertake to protect their IPR). There are two software developers that offer a product variety of differing (exogenously given) quality and compete in prices for heterogeneous users, who make a choice whether to buy a legal version, use an illegal copy (if they can), or not use a product at all. Using an illegal version violates IPR and is thus punishable when disclosed. If a developer considers the level of piracy as high, he can introduce a form of physical protection for his software or digital product. The main aim of our analysis is to study how the level and the change of public IPR protection affect the pricing and IPR protection strategies of software developers. In particular, we are interested in establishing when the two forms of IPR protection (public and private) are complements to each other, when are they substitutes and when a change in public IPR has no impact on private IPR protection.","PeriodicalId":152078,"journal":{"name":"ERPN: Copyright & Trademark (Sub-Topic)","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126639058","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Battling in a Virtual World: A Proposal for Increased Copyright Protection of Multimedia Products in Australia","authors":"Tammy M. Johnson","doi":"10.1093/JIPLP/JPS048","DOIUrl":"https://doi.org/10.1093/JIPLP/JPS048","url":null,"abstract":"This article discusses the adequacy of copyright protection afforded to multimedia products pursuant to the Copyright Act 1968 (Cth) and in response to international obligations. \u0000The paper critically evaluates the effect that the most recent amendments to the Copyright Act have had on the protection of copyright in multimedia products. An outline of some practical measures of protection available to copyright owners as alternatives or complements to the current statutory regime is provided, ultimately concluding that the current legislative protection is ineffective. The paper closes by considering possible future reform by way of statutory amendments to the Copyright Act aimed at increasing protection of copyright in multimedia products.","PeriodicalId":152078,"journal":{"name":"ERPN: Copyright & Trademark (Sub-Topic)","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-03-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131803888","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Approximation and DRM: Can Digital Locks Respect Copyright Exceptions?","authors":"M. Favale","doi":"10.2139/ssrn.2613490","DOIUrl":"https://doi.org/10.2139/ssrn.2613490","url":null,"abstract":"Technological Protection Measures (TPMs) are the hard core of Digital Right Management (DRM) systems, which enforce the rights of the copyright owner in the digital environment. Copyright scholars expressed concerns that TPMs do not comply with copyright exceptions and limits (Hugenholtz 2000; Koelman 2000; Dusollier 2003; Westkamp 2004).A few solutions to this problem have been proposed in the field of internet services (Mulligan and Burstein 2002; Erickson 2003; Cohen and Burk 2001; Sobel 2003). However, none of these proposals is tailored to optical disks (CDs and DVDs). Yet, the report \"Digital Broadband Content: Music\" of the OECD (2005) states that TPMs implemented on optical disks hinder copyright exceptions more often than those applied to internet services. Moreover, in Europe the Copyright Directive exempts TPMs implemented on internet services from compliance with copyright exceptions. This paper therefore outlines possible ways to implement TPMs on optical disks in Europe, in order to achieve their compliance with a list of fundamental copyright exceptions, as identified by previous research (Favale 2008).","PeriodicalId":152078,"journal":{"name":"ERPN: Copyright & Trademark (Sub-Topic)","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114328900","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Of Mutant Copyrights, Mangled Trademarks, and Barbie's Beneficence: The Influence of Copyright on Trademark Law","authors":"J. Ginsburg","doi":"10.2139/SSRN.1008595","DOIUrl":"https://doi.org/10.2139/SSRN.1008595","url":null,"abstract":"In Dastar Corp. v. Twentieth Century Fox Film Corp. Justice Scalia colorfully warned against resort to trademarks law to achieve protections unattainable by copyright, lest these claims generate \"a species of mutant copyright law that limits the public's 'federal right to \"copy and to use,\"' expired copyrights.\" The facts of that controversy, in which the claimant appeared to be invoking time-unlimited trademark protection to end-run the exhausted (unrenewed) copyright term in a motion picture, justified the apprehension that unbridled trademark rights might stomp, Godzilla-like, over more docile copyright prerogatives. Unfortunately, in the Court's eagerness to forestall Darwinian disaster in intellectual property regimes, it may have engaged in some unnatural selection of its own, mangling trademark policies in the process of conserving copyright. This essay will first consider how the (mis)application of copyright precepts has distorted trademarks law, then will take up happier examples of beneficent copyright influence. The first inquiry charts the near-demise of moral rights at the hands of copyright-(mis)informed trademark analysis. The second lauds the growing acceptance of copyright-inspired free speech limitations on trademark protection, exemplified by the various \"Barbie\" cases, and culminating in the \"fair use\" exemptions of the Trademark Dilution Revision Act of 2006.","PeriodicalId":152078,"journal":{"name":"ERPN: Copyright & Trademark (Sub-Topic)","volume":"541 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2007-08-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117045558","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Bipolar Copyright System for the Digital Network Environment","authors":"Alexander Peukert","doi":"10.4337/9781848449442.00011","DOIUrl":"https://doi.org/10.4337/9781848449442.00011","url":null,"abstract":"The article describes a future copyright system for the Internet according to which the copyright owner is free to choose between exclusive exploitation on the basis of digital rights management and a business model where users may lawfully share the work for non-commercial purposes in peer-to-peer networks in exchange for an indirect payment through a levy or tax. This model is derived from an analysis of current proposals pleading for an adoption of levies or taxes in the digital network environment. The article explains that all of these currently discussed models violate international treaties on copyright (the Berne Convention, the TRIPS Agreement, the WCT), because they fail to acknowledge that these treaties mandate exclusive rights and anti-circumvention provisions as the statutory default in national copyright law. However, national copyright law would be compliant with these treaties if it left exclusive rights plus anticircumvention rules intact but gave copyright owners an incentive to opt for compensation without control by establishing a levy or tax system that was only available for those right holders who voluntarily registered their works for this alternative compensation system. As the article shows, such a bipolar copyright system (exclusivity on the one hand, a levy or tax system on the other) would address most of the concerns articulated by copyright pessimists without denying authors the right to decide about the use of their work on the Internet. Most importantly, it could be implemented immediately without having to amend international copyright law.","PeriodicalId":152078,"journal":{"name":"ERPN: Copyright & Trademark (Sub-Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131726542","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Property Rights Theory of the Limits of Copyright","authors":"Norman Siebrasse","doi":"10.2307/825955","DOIUrl":"https://doi.org/10.2307/825955","url":null,"abstract":"The standard view is that copyright law should seek to strike the correct balance between providing incentives to create works and encouraging their dissemination. This article argues that this goal does not, and cannot, explain most aspects of copyright doctrine, because the information necessary to strike this balance correctly is not available to the courts. This article argues that rather than attempting an optimal allocation of rights, the main task of copyright law should be to ensure that property rights are clearly defined. This theory is then applied to explain the idea / expression dichotomy in copyright law; the different roles of copyright and patent law; and to the question of copyright in facts.","PeriodicalId":152078,"journal":{"name":"ERPN: Copyright & Trademark (Sub-Topic)","volume":"90 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131712792","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}