Search Results

The future

Zohar Efroni

in Access-Right: The Future of Digital Copyright Law

This chapter introduces and explains the outlines of a new framework for dealing with the problem of copyright protection in the digital age. It sketches a model for a copyright system that is ... More

This chapter introduces and explains the outlines of a new framework for dealing with the problem of copyright protection in the digital age. It sketches a model for a copyright system that is designed for the digital information environment while introducing the concept of the access-right that would replace existing exclusive rights when applied to digital works. Under the proposed regulative framework, digital access to works would become the axis around which both exclusivity entitlements and exceptions are tailored.Less

Information

Zohar Efroni

in Access-Right: The Future of Digital Copyright Law

This chapter explores the notion of information. Topics discussed include theoretical approaches to conceptual analysis of information, information as process, a model that depicts the single ... More

This chapter explores the notion of information. Topics discussed include theoretical approaches to conceptual analysis of information, information as process, a model that depicts the single sequence of communication and explains its elements, and application of the model to copyright law.Less

The Individual as Creator

John Tehranian

in Infringement Nation: Copyright 2.0 and You

This chapter focuses on the individual as creator. In so doing, it finds that, although copyright may go too far in vindicating the rights of some creators, it actually does too little for others. ... More

This chapter focuses on the individual as creator. In so doing, it finds that, although copyright may go too far in vindicating the rights of some creators, it actually does too little for others. Formalities lie at the heart of this hierarchy of protection, and they provide insight into the particular interests the modern copyright regime serves. This deconstruction of copyright code is both revealing and instructive. Most prominently, it shatters the myth of American copyright militancy by demonstrating how the United States copyright system is far less protective of creator interests than those of other countries. But just as importantly, it suggests it is not necessarily greater or lesser copyright that is needed, but rather a regime that more fully considers the interests of ordinary individuals acting as both users and creators of creative content.Less

The Individual as Reformer

John Tehranian

in Infringement Nation: Copyright 2.0 and You

This chapter turns to the issue of copyright reform. Although the matter of recasting a Copyright 2.0 for the digital age is wrought with challenges, if offers suggestions to address some of the ... More

This chapter turns to the issue of copyright reform. Although the matter of recasting a Copyright 2.0 for the digital age is wrought with challenges, if offers suggestions to address some of the concerns regarding artistic progress, expressive rights, information access, and technological development raised in the course of the analysis. The reforms focus on three particular goals: restoring the balance between users of and rights-holders to copyrighted content; tempering the disparity between copyright law's treatment of sophisticated and unsophisticated parties; and recalibrating the relationship between transformative users and original creators of copyrighted content.Less

Reclaiming copyright: Constitutional Review And Statutory Interpretation

Christina Bohannan and Herbert Hovenkamp

in Creation without Restraint: Promoting Liberty and Rivalry in Innovation

The Copyright Act serves a combination of public and private interests. Where possible, conflicts between the two should be resolved in favor of the public interest. This approach would sort out some ... More

The Copyright Act serves a combination of public and private interests. Where possible, conflicts between the two should be resolved in favor of the public interest. This approach would sort out some of the most pressing issues in copyright law today. The most troublesome aspects of copyright expansion over the past few decades include a longer copyright term, broad reproduction and derivative works rights, and digital rights in the Digital Millennium Copyright Act (DMCA) that prevent uses previously thought to be noninfringing. Yet, copyright doctrines such as the idea/expression dichotomy and fair use protect the rights of the public to use portions of copyrighted works. This chapter discusses how courts can use constitutional adjudication and statutory interpretation to define the scope of these provisions and resolve ambiguities among them in order to restore copyright's balance of incentives and access.Less

Conclusion: Copyright, Consecration, and Control

John Tehranian

in Infringement Nation: Copyright 2.0 and You

This concluding chapter summarizes the discussions in the preceding chapters and presents some concluding thoughts. This book has traced the history and evolution of copyright law and its profound ... More

This concluding chapter summarizes the discussions in the preceding chapters and presents some concluding thoughts. This book has traced the history and evolution of copyright law and its profound impact on the lives of ordinary individuals in the 21st century. Using the trope of the individual in five different copyright-related contexts it has charted the changing contours of the United States copyright regime and assessed its vitality in the digital age. In the process, it has questioned some of the most basic assumptions about copyright law. Copyright has the power to shape the fundamental structure of our information society. The stakes at play in any copyright reform process are therefore critical. This is true not just for the content-creation industries, policy wonks, or intellectual property scholars. It is a matter of importance for us all.Less

Creating

WILLIAM CORNISH

in Intellectual Property: Omnipresent, Distracting, Irrelevant?

This chapter focuses on the second major field in which intellectual property rights (IPRs) are accorded over the commercialisation of ideas. This is the territory of literary, musical, and artistic ... More

This chapter focuses on the second major field in which intellectual property rights (IPRs) are accorded over the commercialisation of ideas. This is the territory of literary, musical, and artistic creation. Topics discussed include copyrights and patents, digitised works, copyright discipline, unlicensed provision of copyright material, and permissible uses of copyright material.Less

Adaptation, Imitation, and Innovation

Michael Keane, Anthony Fung, and Albert Moran

in New Television, Globalisation, and the East Asian Cultural Imagination

This chapter focuses on the legal mechanisms for protecting TV-program formats. The practice of imitation in media industries has led the way in policing copyright protection. When writers of TV ... More

This chapter focuses on the legal mechanisms for protecting TV-program formats. The practice of imitation in media industries has led the way in policing copyright protection. When writers of TV formats, producers, or broadcasters seek to protect their investment, they have to rely on cobbling together a jigsaw of pieces drawn from different areas of intellectual property law. In particular, format protection has been sought through four legal instruments: copyright, breach of confidence, passing-off, and an assortment of law to do with trademarks, patents, and so on.Less

Moral Rights in the International Copyright Regime

Mira T. Sundara Rajan

in Moral Rights: Principles, Practice and New Technology

This chapter presents an overview of the international copyright regime and the global status of moral rights. The global system for copyright protection defines the environment for moral rights. ... More

This chapter presents an overview of the international copyright regime and the global status of moral rights. The global system for copyright protection defines the environment for moral rights. International agreements have included some form of protection for moral rights since 1928, first appearing in the Berne Convention. Since then, their international presence has grown in two ways. First, moral rights have been adopted and modernized in an unprecedented number of jurisdictions, including a historic number of common law countries. Second, the specific question of how moral rights should respond to new technology has begun to be addressed by the WIPO Internet Treaties. The Treaties make an explicit attempt to create digital moral rights, in the form of a new moral right for performers.Less

Marginally Original and Functional Works of Authorship

in The Soul of Creativity: Forging a Moral Rights Law for the United States

This chapter considers works whose level of originality, while perhaps sufficient to obtain copyright protection, is nonetheless arguably too low to qualify for the stronger protections for textual ... More

This chapter considers works whose level of originality, while perhaps sufficient to obtain copyright protection, is nonetheless arguably too low to qualify for the stronger protections for textual integrity addressed in this book. It argues that while certain functional types of works should be excluded per se from moral rights protection, other works such as art, literature, music, and even architecture presumptively should qualify if a sufficient showing of originality can be made with respect to the particular work at issue. For many works, the requisite level of originality likely will not be an issue. For works at the margins, however, courts will have to decide whether a heightened originality standard with substantial creativity has been met. Any originality determination thus will necessitate at least some judicial evaluation of the artistic rank of a given work.Less

Your Face Doesn’t Go Anywhere: Cultural Production and Legal Subjectivity

Boatema Boateng

in The Copyright Thing Doesn't Work Here: Adinkra and Kente Cloth and Intellectual Property in Ghana

This chapter discusses how both adinkra and kente makers and musicians fight for the copyright protection of their products. Ghanaian recording artists and producers began to press for more effective ... More

This chapter discusses how both adinkra and kente makers and musicians fight for the copyright protection of their products. Ghanaian recording artists and producers began to press for more effective copyright protection of their work in the late 1970s after cassette recording technology became widely available in Ghana. Ghanaian cloth producers, however, did not ask the government for the protection of their product. A lobbying group of musicians were instrumental in shaping various aspects of the country’s intellectual property law since Ghana’s independence in 1957. They demonstrate that the ownership claims around different kinds of cultural production are dependent on the capacity to relate to the state as a citizen and legal subject.Less

The Programmer as Author: Moral Rights in Information Technology

Mira T. Sundara Rajan

in Moral Rights: Principles, Practice and New Technology

This chapter examines moral rights in two contrasting manifestations of information technology. First, it discusses the place of moral rights in works of new technology that are now accepted ... More

This chapter examines moral rights in two contrasting manifestations of information technology. First, it discusses the place of moral rights in works of new technology that are now accepted subject-matter for copyright protection. It looks at the paradigmatic case of computer software and databases. Second, it explores the collision of new technology with the world of the arts and considers three aspects of the problem. It considers the moral rights implications of new kinds of artistic works; creative works that are created by new technological methods; and artistic creation that represents a combination of the two. In many ways, information technology represents a test case for moral rights in the digital context. Computer software has been integrated whole heartedly into copyright law. At the same time, software and related technologies challenge copyright at a fundamental level.Less

Human Rights Laws and Authorship Norms

in The Soul of Creativity: Forging a Moral Rights Law for the United States

This chapter examines a relatively uncharted area within the study of American intellectual property law—the role of human rights and authorship norms. The history of the International Bill of Human ... More

This chapter examines a relatively uncharted area within the study of American intellectual property law—the role of human rights and authorship norms. The history of the International Bill of Human Rights demonstrates that although there may not have been a universal consensus as to whether moral rights are human rights, there was a significant recognition that these interests are deemed worthy of protection in a human rights framework. Thus, rather than focusing on whether moral rights are within the scope of human rights, the better question is whether the widespread recognition of moral rights means they should be considered as “authorship norms.” The chapter ultimately calls for a broader spectrum of theoretical justifications for copyright law than the utilitarian framework typically invoked to justify copyright protections. A more fluid view of copyright generally allows for the incorporation of enhanced moral rights into our legal system.Less

Women, Risk, and Intellectual Property: Elizabeth Gaskell and George Eliot in the 1860s

Clare Pettitt

in Patent Inventions - Intellectual Property and the Victorian Novel

In March 1856, a petition was presented in the British Parliament, by Lord Brougham in the Upper House and by Sir Erskine Perry in the Commons. The petition called for property rights for married ... More

In March 1856, a petition was presented in the British Parliament, by Lord Brougham in the Upper House and by Sir Erskine Perry in the Commons. The petition called for property rights for married women, but what is striking is that it was submitted by, and rapidly became associated very closely with, female literary writers. This chapter examines how women writers in Victorian England negotiated the inheritance of a highly gendered model of creativity and intellectual property, focusing on Elizabeth Gaskell and George Eliot. Unlike William Thackeray and Charles Dickens, Gaskell and Eliot were not publicly involved with the debate about authorship in the 1850s, or with the campaign to improve copyright protection.Less

Looking Backward: Founding Choices in Innovation and Intellectual Property Protection

B. Zorina Khan

in Founding Choices: American Economic Policy in the 1790s

The American system of patent and copyright protections authorized by the Constitution, as implemented by legislation in 1790 and after, illustrated a departure from European precedents in directions ... More

The American system of patent and copyright protections authorized by the Constitution, as implemented by legislation in 1790 and after, illustrated a departure from European precedents in directions that were conducive to economic growth. American patents were for “first and true” inventors and for new and original inventions, not merely ones imported from another country or copied from another inventor. Application fees for patents in the United States were lower than in Europe, and were intended to cover administrative expenses rather than enhance government revenues. Property rights were strong; those granted patents were not restricted in how they could exploit them. The system was open and transparent; with an inventor's rights protected, knowledge of new inventions was made widely available, as was knowledge that patent protection had expired. The purpose of the patent was “to promote the progress of science and useful arts” by means of granting temporary exclusive rights for novel inventions.Less

Looking Forward to Legal Reform

in The Soul of Creativity: Forging a Moral Rights Law for the United States

This chapter proposes how the law in the United States can be reformulated to incorporate measures manifesting a greater sensitivity to authors' needs in maintaining the integrity of their texts. The ... More

This chapter proposes how the law in the United States can be reformulated to incorporate measures manifesting a greater sensitivity to authors' needs in maintaining the integrity of their texts. The challenge is to formulate a set of reforms that will incorporate authorship morality through new measures designed to supplement, but not displace completely, the current legal system. This challenge is substantial but it can be accomplished. The key to crafting such reforms lies in paying greater attention to the intrinsic dimension of creativity and all of the forces motivating authorship rather than just those that are based on economic incentives.Less

Protecting User Interfaces

Noam Shemtov

in Beyond the Code: Protection of Non-Textual Features of Software

This chapter examines the scope of protection to which graphical user interfaces may be eligible under various intellectual property rights: namely, trade marks, unfair-competition laws, design ... More

This chapter examines the scope of protection to which graphical user interfaces may be eligible under various intellectual property rights: namely, trade marks, unfair-competition laws, design rights, copyright, and patents. It first considers the extent of copyright protection over a software product’s ‘look-and-feel’ elements, with particular emphasis on graphical user interfaces protection under US and EU laws. It then discusses trade-mark, trade-dress, and unfair-competition protection for graphical user interfaces, along with intellectual property rights protection for design patents and registered designs. Finally, it describes the patent protection for graphical user interfaces in the United States and at the European Patent Office.Less

Licence-Created Monopolies: Controlling Use Through Restrictive Licensing Terms

Noam Shemtov

in Beyond the Code: Protection of Non-Textual Features of Software

This chapter examines whether contract law may be used to override or redefine the exceptions and limitations in existing copyright laws with regard to software licences. It shows that right holders ... More

This chapter examines whether contract law may be used to override or redefine the exceptions and limitations in existing copyright laws with regard to software licences. It shows that right holders favour licensing over sales and use the licensing model to regulate the ability of licensees to utilize functional elements of the software and reverse engineer it. The chapter also explains how the software industry uses technology-based solutions to restrict reverse engineering and reproduction. The principle of the freedom of contract is examined, and the legal principles that may limit its application are surveyed. Next, the combined effect of contracts of adhesion and technological protection measures on the use of software and software products are examined. Finally, software’s unique specificities as a protectable subject matter, as a ground for a balanced juridical approach in relation to the combined effect of copyright law, contract law, and anti-circumvention provisions, are discussed.Less

New Television

Michael Keane, Anthony Fung, and Albert Moran

in New Television, Globalisation, and the East Asian Cultural Imagination

Adaptation has become the prime currency of contemporary television markets, particularly when ideas are transferred across cultural borders. The need to create compelling content has remained ... More

Adaptation has become the prime currency of contemporary television markets, particularly when ideas are transferred across cultural borders. The need to create compelling content has remained central, even if the adaptations in question have frequently taken advantage of limited international copyright protection. The key issue is the relationship between novelty, industry volatility, and consumer attention in this current age of adaptation. This final chapter draws together a number of threads that have a direct bearing on the future of television.Less