Columbia Journal of Law and the Arts最新文献

{"title":"Session II: The Impact of International Copyright Treaties and Trade Agreements on the Development of Domestic Norms (Ysolde Gendreau)","authors":"Ysolde Gendreau","doi":"10.7916/D8MG823N","DOIUrl":"https://doi.org/10.7916/D8MG823N","url":null,"abstract":"These remarks are a transcript of a talk that was given on October 14, 2016, at the Kernochan Center Annual Symposium at Columbia Law School. \u0000Session II addressed how international copyright treaties and FTAs affect national IP laws in the U.S. and elsewhere. \u0000Session Panelists: \u0000Krista Cox, Director of Public Policy Initiatives, Association of Research Libraries (ARL) \u0000Ysolde Gendreau, Professor, Universite de Montreal \u0000Eric J. Schwartz, Partner, Mitchell, Silberberg & Knupp LLP and Counsel to the International Intellectual Property Alliance \u0000Karyn Temple Claggett, Associate Register of Copyrights and Director of Policy & International Affairs, U.S. Copyright Office","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"80 2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115049913","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":"Session IV: Fair Use and Other Exceptions","authors":"Jonathan Band","doi":"10.7916/JLA.V40I3.2053","DOIUrl":"https://doi.org/10.7916/JLA.V40I3.2053","url":null,"abstract":"These remarks are a transcript of a talk that was given on October 14, 2016, at the Kernochan Center Annual Symposium at Columbia Law School. \u0000Session IV focused on efforts to incorporate exceptions into international copyright treaties and trade agreements, including for example, a flexible “fair use”-type exception. \u0000Session Panelists: \u0000Jonathan Band, Jonathan Band PLLC \u0000David Carson, Senior Counsel and Head of Copyright Policy Team, Office for Policy & International Affairs, U.S. Patent and Trademark OfficeU.S. Patent and Trademark Office \u0000Lital Helman, Professor, Ono Academic College Faculty of Law \u0000Stan McCoy, President and Managing Director of the Motion Picture Association (MPA) EMEA","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115522917","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":"Session I: Keynote Panel, Describing the Legal Landscape","authors":"Probir Mehta","doi":"10.7916/JLA.V40I3.2043","DOIUrl":"https://doi.org/10.7916/JLA.V40I3.2043","url":null,"abstract":"These remarks are a transcript of a talk that was given on October 14, 2016, at the Kernochan Center Annual Symposium at Columbia Law School. \u0000Session I, the Keynote Panel of the Symposium, addressed the legal landscape of copyright treatises and free trade agreements, including the role of FTAs and their benefits and disadvantages, and how copyright obligations in FTAs may differ from those in international treaties. \u0000Session Panelists: \u0000Probir Mehta, Assistant U.S. Trade Representative for Innovation and Intellectual Property \u0000Steven J. Metalitz, Partner, Mitchell, Silberberg & Knupp LLP and Counsel to the International Intellectual Property Alliance","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132043589","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":"Session III: Issues Concerning Enforcement and Dispute Resolution (Steven Tepp)","authors":"S. Tepp","doi":"10.7916/D8DV1XG6","DOIUrl":"https://doi.org/10.7916/D8DV1XG6","url":null,"abstract":"Thank you very much. Thanks June and Jane, and the whole team here at the Kernochan Center and Columbia University. It’s a pleasure and an honor to be with you. And let me add that my remarks today are my own and do not necessarily reflect the views of any client or employer. Undergirding really all the discussion that we’ve been having today is a fundamental truth that hasn’t actually been articulated. I wanted to just give that voice as I begin my remarks, and that is: foreign piracy of copyrighted works is widespread, pervasive, and persistent. It’s been going on for decades. You can go back and read the Special 301 reports that Probir and his predecessors, including Stan, have overseen and published, going back to the 1980s. And there is massive theft. The mode and methodology has changed over the years, but there’s a real problem out there. For a period of time, we were able to address that through norm setting, the WIPO, but the problem there is there was no real enforcement mechanism. It has this International Court of Justice adjudication, but there were really no teeth to that. So it was really left to a matter of bilateral political pressure, and even the trade sanctions. And back in that age, that era, the United States did impose trade sanctions on occasion, bilaterally, unilaterally. With the adoption of the TRIPS agreement as part of the WTO, we have both a more modern and extensive set of standards, including enforcement standards, which generally didn’t exist in WIPO documents. And we have a dispute resolution process that allowed a neutral third party adjudication of disputes, which were beneficial. Unfortunately, as was pointed out earlier, the TRIPS standards are now about a quarter century old. And as we’re undergoing continual innovation and development in marketplace practices, as well as piracy practices, it’s a fundamental","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131844673","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":"Navigating the Ambiguities and Uncertainties of the Holocaust Expropriated Art Recovery Act of 2016","authors":"Sari Sharoni, Simon J. Frankel","doi":"10.7916/JLA.V42I2.2004","DOIUrl":"https://doi.org/10.7916/JLA.V42I2.2004","url":null,"abstract":"With an admirable purpose, a celebrity endorsement from Dame Helen Mirren, and unanimous support in Congress, the Holocaust Expropriated Art Recovery Act (HEAR Act), passed in late 2016, appears to be a rare legislative success. Its congressional momentum, however, belies the pitfalls that inhere in its text. The Act’s nuanced and often ambiguous language raises many questions to be addressed in future litigation over restitution claims to Nazi-looted art. \u0000The HEAR Act was meant to address a perceived problem that legitimate claims to recover art looted by the Nazis were not being heard “on the merits” in U.S. courts, but were instead too frequently being dismissed as brought too late—in particular, blocked by courts’ application of state statutes of limitations. And, at a minimum, disputes over the timeliness of claims to Nazi-looted art rendered litigation of such claims protracted and costlier. The Act sought to relieve claimants of these obstacles by instituting a nationwide six-year limitations period running from “actual knowledge” of the relevant facts. \u0000Despite its relatively short length, the HEAR Act brings a number of interpretive difficulties that will give rise to a new set of litigation hurdles for both claimants and possessors of artworks subject to claims. This Article is meant as a guide to courts and litigants in navigating key ambiguities and uncertainties in the statute. The Article discusses the Act in three parts. First, we briefly explain the context in which the Act was enacted: the history of United States and international efforts to return art lost during the Holocaust to rightful owners. Second, we describe the Act’s consideration by Congress and its operative provisions. We finally discuss half a dozen instances in which the HEAR Act’s language is unclear, ambiguous, or raises difficult issues about the application or scope of the statute. Several of these instances are ambiguities created by the text of the statute, which is often in tension with its legislative history; others reflect an apparent mismatch between the statutory language and the practical reality of litigation. Where possible, we suggest what we believe is the most plausible and compelling reading of problematic statutory language in light of the text, history, and purposes of the Act, as well as the realities of litigation over Nazi-era art restitution claims. \u0000Our concern with the uncertainties created by the Act’s language is not theoretical. Litigants are already espousing conflicting interpretations of the Act’s language on some of the points discussed below, and courts have already reached holdings at odds with the statute’s language or legislative history (and sometimes both). All in, an Act meant to streamline claims to recover Nazi-looted art may well end up making such litigation costlier and more time-consuming for parties and courts as litigants argue for their preferred meaning of the Act’s terms.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131615958","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":"Session III: Issues Concerning Enforcement and Dispute Resolution (Antony Taubman)","authors":"A. Taubman","doi":"10.7916/D8PC3F0J","DOIUrl":"https://doi.org/10.7916/D8PC3F0J","url":null,"abstract":"Thank you very much to everyone. I won’t consume my time with all my thanks. It’s great to be here. I’m lucky to be part of this panel, and I will try to build on the two previous presentations. Two important caveats, though, picking up from Sean. Of course, we don’t interpret treaty language, we organize a system whereby panel members and then the appellate body themselves clarify the terms, but I would just opportunistically make one quibble with what Sean said: I think one of the strengths of dispute settlement in the WTO is the institutional gravitas, the consistency, the coherence, the idea that it is a coherent system that is coherently managed. Okay, I am a bureaucrat, so nothing I say—in fact if you can discern any coherent view from what I’m saying, don’t attribute it to the WTO or to the Secretary or to the Members. I’m not going to talk about the law, or the interpretation of the law, so much as the ideas behind the law. It’s very rare that I’m let loose in a law faculty so I’m going to talk rather abstractedly, partly as a bureaucratic defense but also because I think there are some very interesting abstract ideas that come up in this discussion about dispute settlement that are worth thinking about. The idea of a TRIPS Agreement—we’re still debating what are those “trade related aspects” of intellectual property rights. I like to say, essentially TRIPS reframed the international law of intellectual property by saying that indeed, IP is trade-related. In other words, when there are trade negotiations, when there are trade disputes, when there are trade relations generally, IP is on the table, is on the agenda. And that’s the transformation that we’re seeing washing through the system, not merely multilaterally, but in the RTAs and the bilateral agreements, too, that we’ve been talking about. And behind this is this essential idea of what is adequate and effective protection of IP arts—and let’s just hang onto that concept.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125460216","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 Trolls, Orphans, and Abandoned Marks: What’s Wrong With Not Using Intellectual Property?","authors":"R. Bone","doi":"10.7916/JLA.V42I1.2008","DOIUrl":"https://doi.org/10.7916/JLA.V42I1.2008","url":null,"abstract":"The question whether intellectual property (“IP”) rights should require use is a pressing one today. Neither patent nor copyright law formally requires that the IP owner actually use the patented invention or copyrighted work. Yet use would seem necessary for a work to reap the social benefits that justify granting exclusive rights. Trademark law does require use, but it sometimes protects marks even when mark owners have ceased using them. \u0000This messy state of affairs has come under considerable pressure in recent years. Critics condemn patent assertion entities, commonly known as patent trolls, for asserting patents that they do not commercialize or use themselves, and some of these critics advocate a general use requirement to handle the problem. In copyright, the problem of orphan works has become particularly salient with the rise of digital technology and user-generated content, and the optimal solution involves tricky questions bearing on use. Trademark law also exhibits confusion about use and nonuse in the area of trademark abandonment. In particular, courts have been unable to develop a coherent approach to abandonment by nonuse when the abandoned mark retains substantial residual goodwill. \u0000This Article breaks new ground by focusing on use from the perspective of the utilitarian and nonutilitarian theories that justify IP rights and by using this perspective to develop a general framework for analyzing questions of use and nonuse across patent, copyright, and trademark law. When the issues are examined at the normative level, it becomes clear that a general rule conditioning IP rights on use across-the-board is not desirable. Any use requirement should be tailored to the nature of the specific problems that nonuse creates. In keeping with this insight, the Article examines the patent troll, orphan work, and residual goodwill problems and proposes sensible solutions tailored to each.","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124373564","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":"Session II: The Impact of International Copyright Treaties and Trade Agreements on the Development of Domestic Norms (Eric Schwartz)","authors":"Eric P. Schwartz","doi":"10.7916/D8C2581S","DOIUrl":"https://doi.org/10.7916/D8C2581S","url":null,"abstract":"Let me begin by saying thank you Pippa, and thank you to my friends Jane Ginsburg and June Besek for inviting me here. It is always an honor to be back at the Kernochan Center. I had the pleasure of knowing Jack Kernochan and working and learning from him, so it is a personal pleasure as well to be here. Pippa and others posed a few questions to us, and the other speakers on the first panel who have addressed some of these issues. I am going to put my own gloss on the questions. The first was, “How do the copyright treaties and trade agreements affect national IP laws in the U.S. and elsewhere?” And I guess the real question is: are norms even being set by the treaties and trade agreements? Let me just start with the basics for the students in the room who may be unfamiliar with international copyright law. First, there is no such thing as international copyright law. I always put “international” in quotes. International copyright is an interlocking set of national laws for which the treaties set norms— often floors (minimum levels of protection). That is what happens when you get lots of countries in one room trying to agree on what the levels of protection and enforcement—and whatever else—should be – minimum sets of norms.1 The most difficult part of putting the treaties into force is not the treaty language; it is the implementation of the treaties in the national laws. If you look at the history of the treaties—as Karyn has provided, and Steven Metalitz and Probir Mehta have talked about—there is a long lag time between the treaties being completed and being enacted into national laws.2 Another basic point: I spent my formative years at the U.S. Copyright Office negotiating trade agreements, both bilaterals and multilateral agreements. One constant I found is that no country agrees to anything unless they want to. That is just a basic observation, for example, it was part of the U.S.-Soviet Trade Agreement that granted the Soviets “most favoured nation” trade status in exchange for an IP chapter; that agreement was signed by President Bush and Gorbachev.3 The idea is","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125011329","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":"Session III: Issues Concerning Enforcement and Dispute Resolution (Sean Flynn)","authors":"S. Flynn","doi":"10.7916/D8697G47","DOIUrl":"https://doi.org/10.7916/D8697G47","url":null,"abstract":"International intellectual property law, especially over the last twenty years or so, has been an incredibly contested field. The last big treaty in this area—the AntiCounterfeiting Trade Agreement1—was met on its release by the mobilization of roughly 300,000 people across Europe marching in the streets.2 People were marching to oppose the substance of the agreement. They believed that its measures combatting piracy were invading personal rights and the liberties of Internet users. And they opposed the treaty’s process. People marched against the treaty’s highly secretive process. They demanded that rules with such general applications should be subject to more democratic processes.3 There is struggle not just on the streets, but between industry groups. Steve mentioned the potential differences of perspectives between the tech community on one side—the Googles, Yahoos, Facebooks of the world—and the content producers on the other—the movie and music industries.4 Copyright is subject to intense political debate, and those debates are what I call “nested.”5 Struggles between owner rights to exclude and public and technology industry rights to access recur at different levels of the process. And that process itself shifts between forums. From local legislatures to courts. From national systems to bilateral","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129169514","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":"Session II: The Impact of International Copyright Treaties and Trade Agreements on the Development of Domestic Norms (Karyn Temple Claggett)","authors":"Karyn Temple Claggett","doi":"10.7916/D8FT8ZM1","DOIUrl":"https://doi.org/10.7916/D8FT8ZM1","url":null,"abstract":"These remarks are a transcript of a talk that was given on October 14, 2016, at the Kernochan Center Annual Symposium at Columbia Law School. \u0000Session II addressed how international copyright treaties and FTAs affect national IP laws in the U.S. and elsewhere. \u0000Session Panelists: \u0000Krista Cox, Director of Public Policy Initiatives, Association of Research Libraries (ARL) \u0000Ysolde Gendreau, Professor, Universite de Montreal \u0000Eric J. Schwartz, Partner, Mitchell, Silberberg & Knupp LLP and Counsel to the International Intellectual Property Alliance \u0000Karyn Temple Claggett, Associate Register of Copyrights and Director of Policy & International Affairs, U.S. Copyright Office","PeriodicalId":222420,"journal":{"name":"Columbia Journal of Law and the Arts","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131550105","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}