Intellectual Property: Copyright Law eJournal最新文献

{"title":"The Impact of the Information Society Directive on UK Copyright Law","authors":"Tanya Aplin","doi":"10.2139/ssrn.3250388","DOIUrl":"https://doi.org/10.2139/ssrn.3250388","url":null,"abstract":"This paper examines the impact of Directive 2001/29/EC in light of two major developments since 2011. The first is the extensive growth of EU jurisprudence on Directive 2001/29/EC and, particularly, increased judicial harmonization of copyright. As a result of this shift, clarity on some – but not all - aspects of Directive 2001/29/EC has emerged and the flexibility of Article 5 exceptions and limitations has been somewhat constrained. While UK courts have sought to apply the interpretations of the European Court of Justice, on occasions (such as with the originality requirement) they have still been prone to relying on domestic concepts and principles. The second and more troublesome development is the regrettable decision of the United Kingdom to withdraw from the European Union. The negotiations for withdrawal are on-going and so it is difficult to predict the consequences for UK copyright law. Even so, the Directive 2001/29/EC and its interpretations by the European Court of Justice are likely to remain influential in future to UK copyright law. <br><br>As a result of these two major developments, the picture of how Directive 2001/29/EC impacts UK copyright law has become more complex. This paper will seek to tease out these complexities in discussion of the following topics: i) originality; ii) exclusive rights; iii) exceptions; and iv) the UK’s post-Brexit future.","PeriodicalId":223636,"journal":{"name":"Intellectual Property: Copyright Law eJournal","volume":"254 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132495387","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":"Chinese Film Laws: An Unintended Driver of Intellectual Property Infringement","authors":"Keith Kelly","doi":"10.2139/ssrn.3379790","DOIUrl":"https://doi.org/10.2139/ssrn.3379790","url":null,"abstract":"This timely comment introduces readers to the history and recent rise of the Chinese theatrical film industry, Hollywood’s subsequent reliance on the market, China’s current laws governing film and its obligations as a member of the World Trade Organization, and analyzes the unintended intellectual property implications of its film laws. While China has made commendable efforts at copyright reform and enforcement, its film laws undermine its progress and drive Chinese consumers to pirated content, costing Hollywood studios millions. This comment includes up to date laws and box office statistics, analyzes implications of the Trump administration's escalating trade war, and proposes realistic legal solutions that benefit Chinese and Hollywood stakeholders as China struggles to square the policy goals of the Communist Party with its increasingly capitalistic economy.","PeriodicalId":223636,"journal":{"name":"Intellectual Property: Copyright Law eJournal","volume":"91 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-05-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121485649","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 Press Publication Right in the European Union: An Overreaching Proposal and the Future of News Online","authors":"Stavroula Karapapa","doi":"10.4337/9781786434074.00024","DOIUrl":"https://doi.org/10.4337/9781786434074.00024","url":null,"abstract":"The proposed press publication right aims to provide news publishers with an additional layer of copyright protection. Following a number of controversial national initiatives, such as the German and Spanish laws on news aggregators (the so-called ‘Google tax’), it aspires to offer a solution to the so-called ‘newspaper crisis’. However, the proposed right is not an appropriate measure for addressing declining revenues in the press publishing sector in Europe. There is no hard evidence that the right can achieve its stated objectives, notably to facilitate rights clearance and enforcement in the press publishing industry, and its scope and duration are excessive. The protectable subject matter is defined more broadly than what the Commission seems to intend, and the right is designed to cover a number of digital activities beyond hyperlinking, such as scanning, indexing, posting snippets, certain forms of text mining, and headlines embedding links. This could have the effect of affording protection to information rather than original subject matter, possibly resulting in a monopolisation of information that goes against basic principles of copyright protection.","PeriodicalId":223636,"journal":{"name":"Intellectual Property: Copyright Law eJournal","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-02-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125744889","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":"Notice and Takedown: Online Service Provider and Rightsholder Accounts of Everyday Practice","authors":"Jennifer M. Urban, J. Karaganis, Brianna L. Schofield","doi":"10.31235/osf.io/hp9fz","DOIUrl":"https://doi.org/10.31235/osf.io/hp9fz","url":null,"abstract":"Section 512 of the Digital Millennium Copyright Act established both \"safe harbors\" from liability for online service providers and the well-known \"notice and takedown\" process for removing online infringements of copyrighted material. In the ensuing two decades, the notice and takedown process has become a primary tool for raising and resolving copyright disputes in the United States. \u0000But despite its influence, there is little empirical research describing § 512's operation or its effectiveness. This article digests findings from a qualitative study, reported fully in the three-study report, Notice and Takedown in Everyday Practice (available at https://ssrn.com/abstract=2755628) and peer-reviewed here, that helps fill this gap. Through detailed surveys and interviews with nearly three dozen respondents, we provide the first detailed account of how § 512 is implemented and experienced by online service providers and large rightsholders. All respondents agreed that the § 512 safe harbors and the ability to take down infringing material remain fundamental. But the online copyright enforcement ecosystem is also highly diverse, and all participants face challenges. The findings suggest that the notice and takedown system is important, under strain, and that there is no \"one size fits all\" approach to improving it. Based on the findings, we suggest a variety of best practices and limited legal reforms.","PeriodicalId":223636,"journal":{"name":"Intellectual Property: Copyright Law eJournal","volume":"48 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116720337","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":"Distinguishing Mayor McCheese from Hexadecimal Assembly Code for Madden Football: The Need to Correct the 9th Circuit's ‘Nutty’ Rule barring Expert Testimony in Software Copyright Cases","authors":"Peter S. Menell, D. Nimmer, Kevin Green","doi":"10.2139/SSRN.3059854","DOIUrl":"https://doi.org/10.2139/SSRN.3059854","url":null,"abstract":"Four decades ago, the Ninth Circuit ruled that expert testimony was inadmissible to determine whether Mayor McCheese and the merry band of McDonaldland characters infringed copyright protection for Wilhelmina W. Witchiepoo and the other imaginative H.R. Pufnstuf costumed characters. Since the emergence of software copyright infringement cases in the 1980s, substantially all software copyright cases have employed expert witnesses to aid juries in understanding software code. As the Second Circuit wisely recognized in Computer Associates Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 713 (2d Cir. 1992), the ordinary observer standard “may well have served its purpose when the material under scrutiny was limited to art forms readily comprehensible and generally familiar to the average lay person,” but as to computer programs, district courts must have “discretion . . . to decide to what extent, if any, expert opinion, regarding the highly technical nature of computer programs, is warranted in a given case.” \u0000Yet in a shocking departure from the decisions of every other circuit that has confronted software copyright infringement litigation, the Ninth Circuit reaffirmed and applied an anachronistic bar on expert testimony — originating in Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1164 (9th Cir. 1977) — to all copyright disputes, including those involving highly technical works. Antonick v. Electronic Arts, Inc., 841 F.3d 1061 (9th Cir. 2016), holds that lay juries must decipher and analyze software code — in this case, hexadecimal assembly code for different processors — without the assistance of expert witnesses. The author of the Ninth Circuit’s Antonick decision called the rule that he was following “nutty.” This paper argues that Supreme Court intervention is required to crack open that nutty rule.","PeriodicalId":223636,"journal":{"name":"Intellectual Property: Copyright Law eJournal","volume":"97 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124819985","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":"Fixing Safe Harbor: An Economic Analysis","authors":"T. Beard, George S. Ford, Michael L. Stern","doi":"10.2139/ssrn.3138745","DOIUrl":"https://doi.org/10.2139/ssrn.3138745","url":null,"abstract":"When a pirated version of a copyrighted work is shared over the Internet, many online intermediaries may participate, exposing these firms to liability through legal concepts such as direct, contributory and vicarious infringement. Safe harbors largely shield intermediaries from “crippling liability” in return for cooperative action on infringing materials. Yet, digital piracy remains a problem. In this POLICY PAPER, we offer a simple economic model of safe harbor protection, demonstrating that de minimis liability for these platforms promotes infringing platforms to the detriment of responsible ones. Increasing the risk of liability for infringement results in a “separating equilibrium,” with one platform offering only legitimate and high-value content and another offering a combination of illegitimate and low-value content. Effective platform liability should ultimately change the structure of the platform industry, which we believe should improve enforcement of copyright law. Legal changes similar to those prescribed here were recently been proposed in the European Union.","PeriodicalId":223636,"journal":{"name":"Intellectual Property: Copyright Law eJournal","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124622943","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":"Blockchain and Law: An Analysis of Blockchain Technology Under the Database Directive 96/9","authors":"T. Gils","doi":"10.2139/ssrn.3737360","DOIUrl":"https://doi.org/10.2139/ssrn.3737360","url":null,"abstract":"This work investigates whether several types of blockchains could fall under the scope of application of the database-directive (DBD). <br><br>It starts with a technical chapter which explains blockchain-technology in order to provide the reader with the necessary background information. Two key-characteristics of blockchains are highlighted: their structure and their functioning. Blockchains are distributed databases, consisting of chained, time-stamped blocks and aim to store, transparently and immutably, individually accessible information. Furthermore, it is clarified that there are several types of blockchains (public v. private &amp; permissioned v. permissionless), utilising different kinds of consensus-mechanisms and hosting different types of nodes. In order to make everything more tangible three use-cases are presented which are used throughout the work.<br><br>The next step in the process is to check whether blockchains could fall under the scope of protection, offered by the DBD. Two types of requirements will be assessed: a common requirement (the database-definition) and the specific requirements (related to the copyright/sui generis-right).<br><br>The definition of database lays down six features. Four of them (any form; collection; arranged in a systematic and methodical way; individually accessible) do not turn out to be problematic. The remaining two (independent materials; works, data and other materials), turn out to be less straightforward and give rise to some legal issues.<br><br>For a database, in order to enjoy copyright-protection, it is required that the structure of the database reflects an original selection or arrangement of the contents. This turns out to be a difficult hurdle for the blockchains from the use cases. Only rarely, and depending on the purpose of the blockchain and the implementation at hand, blockchains will qualify for copyright protection.<br><br>The next issue which is tackled, is the set of requirements related to the sui generis-protection. This protection is subject to the fulfilment of two sub-criterions: a) an investment specifically aimed at the obtaining, verification or presentation of the contents of the database should be proven b) That investment should be substantial, qualitatively or quantitatively speaking.<br>With regard to the first sub-criterion, this paper tries to fixate a definition of the three relevant activities and apply that to the use cases. With regard to the second sub-criterion, it turns out that the requirement of a ‘substantial’ investment is interpreted as a de minimis-rule. The threshold is generally interpreted to be quite low which makes it rather difficult to think of a situation in the blockchain-context where the investments would not be substantial enough.<br>The overall conclusion of this paper is that it will be rather difficult to claim copyright-protection for blockchains, whereas sui generis-protection will certainly be available if the implementation at ","PeriodicalId":223636,"journal":{"name":"Intellectual Property: Copyright Law eJournal","volume":"67 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128934040","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 French Case: From Orphan Books to Out-of-Print Works (and Vice-Versa)","authors":"Franck Macrez","doi":"10.2139/SSRN.3116783","DOIUrl":"https://doi.org/10.2139/SSRN.3116783","url":null,"abstract":"This paper describes the French situation with regards to the problem of orphan works an out-of-commerce books. It has a peculiarity, due to a special law regarding out-of-commerce books of the 20th century, which has been the subject of judicial proceedings before the State Council, the Constitutional Council and the European Union Court of Justice.","PeriodicalId":223636,"journal":{"name":"Intellectual Property: Copyright Law eJournal","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128107098","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":"Digital Copyright","authors":"Jessica Litman","doi":"10.1108/146366902320814203","DOIUrl":"https://doi.org/10.1108/146366902320814203","url":null,"abstract":"I completed the original manuscript of Digital Copyright in 2000, two years after Congress enacted the Digital Millennium Copyright Act. The 1976 Copyright Act was itself 24 years old, and beginning to show its age. The Internet, in contrast, was still new and shiny and scary, especially for legacy entertainment and information businesses and the copyright lawyers who represented them. Seventeen years later, the Internet has become an essential feature of all of our lives and the copyright laws designed to tame it seem elderly and barnacle-encrusted. Remarkably, the legislative process that has made sensible copyright law reform all but impossible has stayed largely unchanged. Congress and the Copyright Office have recently launched what is billed as a comprehensive reexamination of copyright law with the goal of overhauling the law for the 21st century. It seems likely that these efforts will hew to the patterns of earlier copyright revision. Perhaps we stick with the tried and true approach to making copyright laws, even though it results in bad laws, because the process works so well for so many of the participants. Members of Congress can rely on affected industries to come up with broadly acceptable compromises, and to take on much of the burden of pressuring other interested groups to swallow them. Meanwhile, Senators and Representatives can continue to collect generous campaign contributions. The Copyright Office can be the center of attention as it plays a crucial role in managing the multilateral negotiations and interpreting their results to Congress. Copyright lobbyists and trade organizations can collect hefty fees from their members, in return for supplying them with laws that will give them competitive advantages against the next new thing, whatever it is. Because the laws that emerge from this process don’t work very well, meanwhile, everyone can look forward to another round. Although the book is ancient in Internet time, people seem to have continued to read it. Now that it has finally gone out of print, I’m delighted to be able to make it more freely available under a Creative Commons license. In addition to the Afterword that I wrote for the 2006 paperback edition, I have included a postscript looking back briefly on what, if anything, we might have learned from the aftermath of the stories told in this book. Postscript is available at: <a href='https://ssrn.com/abstract=2968546'>https://ssrn.com/abstract=2968546</a>.","PeriodicalId":223636,"journal":{"name":"Intellectual Property: Copyright Law eJournal","volume":"72 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127343813","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":"Famous on the Internet: The Spectrum of Internet Memes and the Legal Challenge of Evolving Methods of Communication","authors":"Stacey M. Lantagne","doi":"10.2139/ssrn.2944804","DOIUrl":"https://doi.org/10.2139/ssrn.2944804","url":null,"abstract":"On a daily basis, millions of Internet users re-blog, re-tweet, and re-post the content of others on social media. It is conduct that has led to a flourishing social Internet culture, but it is also conduct that implicates many clashing interests. For some, an Internet meme is a work of their own creativity whose co-option by the Internet at large is an act of infringement. For others, an Internet meme is a violation of their privacy resulting in severe emotional distress. For still others, an Internet meme is a vital communicative tool expressing particular ideas that cannot be articulated in any other way. This Article argues that the legal analyses applied to memes should strive to seek a balance between all of these interests, promoting the continuation of meme culture while also protecting those harmed by meme culture’s excesses. \u0000This Article uses the examples of a number of different memes to demonstrate that meme usage encompasses a spectrum of activity ranging from static to mutating in nature. These different uses have correspondingly different impacts on the legal rights of all three meme interest groups, none of which are adequately captured by traditional applications of existing doctrines of intellectual property or privacy laws. This Article posits that explicit acknowledgment of the wide spectrum of meme behavior should be used to help guide and appropriately adjust the application of legal doctrine to the meme in question, with attention paid to the underlying policy interests of a particular meme use. This can lead to more effective legal decisions regarding these memes that balance more precisely the interests of all those affected — both negatively and positively — by Internet meme culture.","PeriodicalId":223636,"journal":{"name":"Intellectual Property: Copyright Law eJournal","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126410215","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}