Intellectual Property Law eJournal最新文献

{"title":"Sound Recordings, Works for Hire, and the Termination-of-Transfers Time Bomb","authors":"Peter S. Menell, D. Nimmer","doi":"10.2139/ssrn.1626355","DOIUrl":"https://doi.org/10.2139/ssrn.1626355","url":null,"abstract":"In crafting the Copyright Act of 1976, Congress brokered a grand compromise between authors and publishers so as to bring about a unitary term of protection. Authors obtained an inalienable right to terminate transfers 35 years after an assignment, subject to designated carve outs for nine categories of collaborative works that could become unmarketable following termination due to the transaction costs of reassembling the necessary rights. While motion pictures and encyclopedias made the list, sound recordings were not expressly covered - although they arguably fit into other designated categories. This Article traces the background to this dispute, which will likely take on great salience in 2013, when the first post-1976 works become eligible for termination.","PeriodicalId":281709,"journal":{"name":"Intellectual Property Law eJournal","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134236189","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":"Section 337 Patent Investigation Management Guide","authors":"Peter S. Menell, George Brian Busey, R. Cordell, Mark G. Davis, Matthew D. Powers, Sturgis M. Sobin","doi":"10.2139/SSRN.1603330","DOIUrl":"https://doi.org/10.2139/SSRN.1603330","url":null,"abstract":"The U.S. International Trade Commission has emerged as one of the most salient patent enforcement venues in the United States. Its fast-track procedures – typically producing determinations within 12 to 16 months of initiation of an investigation – and potent exclusion remedy have brought the ITC to center stage in patent enforcement over the past several years. The ITC now conducts more full patent adjudications on an annual basis than any district court in the nation. The ITC’s six Section 337 administrative law judges (ALJs) focus almost exclusively upon patent investigations, making the ITC the only specialized trial-level patent adjudication forum in the nation. Given the importance of international trade to high technology markets, the ability to exclude goods at the border provides a valuable strategic option for a growing number of patent owners. This guide, modeled after the Patent Case Management Judicial Guide, provides comprehensive analysis of the management of Section 337 investigations.","PeriodicalId":281709,"journal":{"name":"Intellectual Property Law eJournal","volume":"169 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-05-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132617934","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 D.C. Circuit’s Excessively High Causation Standard in Rambus","authors":"Michael A. Carrier","doi":"10.2139/ssrn.1586430","DOIUrl":"https://doi.org/10.2139/ssrn.1586430","url":null,"abstract":"In the most important ruling ever on causation and standard-setting, In re Rambus, the D.C. Circuit made it unnecessarily difficult to demonstrate causation. It erected roadblock after roadblock in front of legitimate cases alleging monopolization in the standard-setting context. The primary hurdle took the form of a dichotomy. The court reasoned that Rambus’s nondisclosure of its patents was responsible for the standard-setting organization (SSO) either (1) adopting its technology or (2) failing to obtain reasonable-and-nondiscriminatory (RAND) royalties. But its reasoning on each prong of the dichotomy cut off legitimate claims. The first prong, of adoption, received a strict “but for” causation standard that is essentially impossible for a plaintiff to show. The FTC was punished for not “eliminating the possibility” that the SSO might have included Rambus’s technology even if it had been disclosed. But the difficulties of proving a sole cause and predicting a counterfactual setting are extremely difficult. The challenges are even higher in the standard-setting context, in which there are numerous potential technologies, including many that are unpatented and less expensive. The second prong, addressing RAND royalties, suffered from an excessive reliance on the case of NYNEX Corp. v. Discon, Inc., which presented a far different factual scenario than Rambus. The D.C. Circuit imbued one line in the case, on monopoly pricing, with far more weight than was warranted. In addition, unlike Rambus, the case dealt with the conduct of a party that already had monopoly power.","PeriodicalId":281709,"journal":{"name":"Intellectual Property Law eJournal","volume":"26 3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116687410","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":"Reasonable Perception and Parody in Copyright Law","authors":"David A. Simon","doi":"10.5072/ULR.V2010I3.431","DOIUrl":"https://doi.org/10.5072/ULR.V2010I3.431","url":null,"abstract":"When the Supreme Court decided that parodies should be given protection under the doctrine of fair use, it attempted to chart a clear course through the waters that had eddied since it last sailed through them forty-three years earlier. In the process, the Court sailed its ship in three primary directions, making the same number of holdings. First, a parody is a type of work entitled to fair use protection. Second, a work qualifies as a parody when it can “reasonably be perceived” as such. Finally, a work’s status as a parody is not determinative of whether it is fair: courts still must analyze the work using the § 107 fair use factors. Despite the Court’s navigational guidance, the parodic sea still whirls with judicial uncertainty: noticeably absent from the Court’s decision and subsequent lower court decisions are methods for determining what can “reasonably be perceived” or who reasonably perceives the work. No one has systematically examined how lower courts have applied the “reasonably perceived” test, or how courts have used a finding of parody to inform their fair use analyses. This Article examines these issues and suggests that the Supreme Court failed to adequately articulate the foundational elements of this test, causing lower courts to apply the test in variety of ways. Paradoxically, however, this analysis shows that, after finding a parody existed, courts have been fairly uniform in their fair-use factor analyses. If the first part of this Article reveals a stormy and poorly charted judicial sea, the second part proposes a new course by articulating a new reasonable perception test and modifying the subsequent fair use analysis. This test is built by deconstructing the current framework for analyzing a parody and then framing it in terms of reasonable perception. This also removes any factor-based analysis for parodic works. Deconstructing and then reconstructing the inquiry this way allows courts to apply the parody doctrine with greater accuracy and consistency. It also anchors the parody inquiry, keeping the judicial ship close to parody’s doctrinal dock.","PeriodicalId":281709,"journal":{"name":"Intellectual Property Law eJournal","volume":"63 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-03-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125020738","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":"Individual, Multiple and Collective Ownership of Intellectual Property Rights - Which Impact on Exclusivity?","authors":"Alexander Peukert","doi":"10.4337/9780857931542.00019","DOIUrl":"https://doi.org/10.4337/9780857931542.00019","url":null,"abstract":"The paper explores to what extent the general balance of intellectual property protection is modified due to different ownership structures. For this purpose, individual, multiple and collective ownership structures in all areas of intellectual property law including the protection of traditional knowledge are identified, defined and distinguished. With regard to each category, the paper asks whether there are repercussions on the scope of exclusivity, which bear on the different ownership structures.","PeriodicalId":281709,"journal":{"name":"Intellectual Property Law eJournal","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128950730","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":"Sequential Musical Creation and Sample Licensing","authors":"Peter DiCola","doi":"10.2139/ssrn.1553890","DOIUrl":"https://doi.org/10.2139/ssrn.1553890","url":null,"abstract":"All musical creation builds on previous works. But using fragments of existing musical works in a new work can often constitute copyright infringement. Copyright law, in cases like Bridgeport Music v. Dimension Films (6th Cir. 2005), has recently increased its restrictions on musicians who wish to engage in sampling, defined as the practice of using other creators’ sound recordings to create new music. The paper describes a model of copyright holders’ and samplers’ incentives to create in light of the need to negotiate licenses for sample-based works to avoid violating copyright law. Even in the absence of traditional transaction costs or royalty stacking, a distinct kind of inefficiency emerges. Green and Scotchmer (1995) have shown that, in the patent context, bargaining may not divide the profit from the sample-based derivative work between upstream and downstream creators in a way that provides both groups with sufficient incentives to create. This paper builds on and extends Green and Scotchmer’s theory by showing that innovation occurring in sequence presents a reciprocal problem. Both upstream and downstream creators have incentive constraints; pure theory cannot say which incentive constraint is less likely to be satisfied. This problem is exacerbated in the sample-licensing context because ex ante agreements are not usually possible. An optimal system for regulating sequential creation would account for the incentives of both upstream and downstream creators, to the benefit of both groups and the public. Congress and the courts have probably failed to achieve this balance, since the economic analysis of courts (especially the Sixth Circuit) has focused mainly on upstream creators’ incentives.","PeriodicalId":281709,"journal":{"name":"Intellectual Property Law eJournal","volume":"88 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121177056","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":"TRIPS & Public Health (With Special Reference to Doha Declaration & Indian Patents Law)","authors":"Renu Sharma, A. Kashyap","doi":"10.2139/SSRN.1527005","DOIUrl":"https://doi.org/10.2139/SSRN.1527005","url":null,"abstract":"World Trade Organization TRIPS Agreement in 1995 has completely altered the international intellectual property system. The harmonization of basic intellectual property standards has operated to protect investment in innovation. But these same harmonized standards had stridently condensed the traditional capacity of suppliers of public goods, such as health care and nutrition, who were catering to the priority needs of developing countries. The paper briefly examines the emergence of TRIPS and the relevant concepts as well as the provisions under the TRIPS pertinent to the access to medicine and the implications of Doha round on public health and access to medicine with special reference to Indian scenario. Through this paper an attempt has been made to critically appraise the controversies surrounding the TRIPS agreement with reference to pharmaceuticals and public health.","PeriodicalId":281709,"journal":{"name":"Intellectual Property Law eJournal","volume":"56 2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116313291","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":"Intellectual Property in the Twenty-First Century: Will the Developing Countries Lead or Follow?","authors":"J. Reichman","doi":"10.1093/acprof:oso/9780199660759.003.0004","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780199660759.003.0004","url":null,"abstract":"Developing countries, particularly the BRIC countries of Brazil, Russia, India, and China, should accommodate their national systems of innovation to the worldwide intellectual property (IP) regime emerging after the adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in a way that maximizes global economic welfare in the foreseeable future. As many developed countries' experience demonstrates, badly configured, over-protectionist IP regimes stifle innovation by making inputs to future innovation too costly and too cumbersome to sustain over time. More carefully considered IP regimes, however, are an important way to protect innovative small- and medium-sized firms from predatory, larger competitors. The challenge is for emerging economies to capture the benefits of IP without importing the serious problems that developed countries have themselves failed to solve. Emerging economies can attain this balance by pursuing a policy of counter-harmonization in which they take advantage of existing exemptions in international agreements governing IP to establish regional, local, and international practices that promote more innovative, flexible uses of IP. Such practices include a research exemption for experimental uses of IP, government imposed nonexclusive licensing, anti-blocking provisions, an essential facilities doctrine, and compulsory licenses. Additional tools include an ex ante regime of compensatory liability rules for small scale innovation and sensible exceptions, particularly for science as well as general fair use provisions, to the exclusive rights of domestic copyright laws. Emerging economies will have to overcome strong economic pressure to accept more restrictive IP regimes as part of free trade agreements as well as a lack of technical expertise and internal government coordination. However, emerging economies have already accrued enough experience to be aware of the strengths and weaknesses of various IP schemes and their own ability to tailor IP to local needs. Developing countries will need to take advantage of that experience and defend innovative practices at international dispute resolution forums. Through creative, determined efforts, the developing countries can avoid other countries' IP excesses while establishing the kind of IP norms that address the real conditions of creativity and innovation in today's digitally empowered universe of scientific discourse.","PeriodicalId":281709,"journal":{"name":"Intellectual Property Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-12-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130515723","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":"Compulsory Licensing: Evidence from the Trading with the Enemy Act","authors":"Petra Moser, Alessandra Voena","doi":"10.2139/ssrn.1313867","DOIUrl":"https://doi.org/10.2139/ssrn.1313867","url":null,"abstract":"Compulsory licensing allows firms in developing countries to produce foreign-owned inventions without the consent of foreign patent owners. This paper uses an exogenous event of compulsory licensing after World War I under the Trading with the Enemy Act to examine the long run effects of compulsory licensing on domestic invention. Difference-in-differences analyses of nearly 200,000 chemical inventions suggest that compulsory licensing increased domestic invention by at least 20 percent.","PeriodicalId":281709,"journal":{"name":"Intellectual Property Law eJournal","volume":"82 9","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132581372","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 Regulation of Geographical Indications in the Wine Sector","authors":"Matteo Ferrari","doi":"10.2139/ssrn.1465378","DOIUrl":"https://doi.org/10.2139/ssrn.1465378","url":null,"abstract":"The paper analyzes the regulation of Geographical Indications (GIs) in the wine sector, making reference to the national (Italy, Australia, USA), supranational (European Union) and international (WTO) contexts. While Europe has created an ad hoc regime for GIs, clearly distinguishing them from trademarks, this does not seem to be the case for Australia and the USA, where such differentiation does not exist or is in its initial stage of development. The paper argues that the differences emerging at comparative level lie in the idea behind the notion of GIs. While Europe conceive them as a kind of common property strongly linked to tradition and culture, Australia and the USA look at GIs as private property rights.","PeriodicalId":281709,"journal":{"name":"Intellectual Property Law eJournal","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-09-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126607597","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}