Throughout the history of business, distinctive marks have been used by producers, sellers and the like to differentiate their goods and services from those of their competitors. As market economies and the differentiation of goods and services grew, the need for distinctive marks correspondingly increased ,and these came to be known as trademarks. In a highly complex modern market with a long chain on intermediaries, a trademark acts as both an advertisement, as well as a signifier of the source, quality of the goods and the goodwill of the producer itself.
{"title":"Graphical Representation and Indian Trademark Law","authors":"Atish Chakraborty","doi":"10.2139/ssrn.3892757","DOIUrl":"https://doi.org/10.2139/ssrn.3892757","url":null,"abstract":"Throughout the history of business, distinctive marks have been used by producers, sellers and the like to differentiate their goods and services from those of their competitors. As market economies and the differentiation of goods and services grew, the need for distinctive marks correspondingly increased ,and these came to be known as trademarks. In a highly complex modern market with a long chain on intermediaries, a trademark acts as both an advertisement, as well as a signifier of the source, quality of the goods and the goodwill of the producer itself.","PeriodicalId":425688,"journal":{"name":"IRPN: Innovation & Copyright Law & Policy (Sub-Topic)","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116989946","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}
Josef Drexl, Reto M. Hilty, Francisco Beneke, Luc Desaunettes, Michèle Finck, Jure Globočnik, Begoña González Otero, Jörg Hoffmann, Leonard Hollander, Daria Kim, Heiko Richter, Stefan Scheuerer, Peter R. Slowinski, Jannick Thonemann
The present Q&A paper aims at providing an overview of artificial intelligence with a special focus on machine learning as a currently predominant subfield thereof. Machine learning-based applications have been discussed intensely in legal scholarship, including in the field of intellectual property law, while many technical aspects remain ambiguous and often cause confusion. This text was drafted by the Research Group on the Regulation of the Digital Economy of the Max Planck Institute for Innovation and Competition in the pursuit of understanding the fundamental characteristics of artificial intelligence, and machine learning in particular, that could potentially have an impact on intellectual property law. As a background paper, it provides the technological basis for the Group’s ongoing research relating thereto. The current version summarises insights gained from background literature research, interviews with practitioners and a workshop conducted in June 2019 in which experts in the field of artificial intelligence participated.
{"title":"Technical Aspects of Artificial Intelligence: An Understanding from an Intellectual Property Law Perspective","authors":"Josef Drexl, Reto M. Hilty, Francisco Beneke, Luc Desaunettes, Michèle Finck, Jure Globočnik, Begoña González Otero, Jörg Hoffmann, Leonard Hollander, Daria Kim, Heiko Richter, Stefan Scheuerer, Peter R. Slowinski, Jannick Thonemann","doi":"10.2139/ssrn.3465577","DOIUrl":"https://doi.org/10.2139/ssrn.3465577","url":null,"abstract":"The present Q&A paper aims at providing an overview of artificial intelligence with a special focus on machine learning as a currently predominant subfield thereof. Machine learning-based applications have been discussed intensely in legal scholarship, including in the field of intellectual property law, while many technical aspects remain ambiguous and often cause confusion. \u0000 \u0000This text was drafted by the Research Group on the Regulation of the Digital Economy of the Max Planck Institute for Innovation and Competition in the pursuit of understanding the fundamental characteristics of artificial intelligence, and machine learning in particular, that could potentially have an impact on intellectual property law. As a background paper, it provides the technological basis for the Group’s ongoing research relating thereto. The current version summarises insights gained from background literature research, interviews with practitioners and a workshop conducted in June 2019 in which experts in the field of artificial intelligence participated.","PeriodicalId":425688,"journal":{"name":"IRPN: Innovation & Copyright Law & Policy (Sub-Topic)","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133670079","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}
In 2016, the California Department of Transportation ("Caltrans") revised its policy standards with respect to the intellectual property rights of artists who create works of public art installed within the state highway system. While Caltrans had previously allowed artists to keep their copyrights subject to a nonexclusive license of certain reproduction rights to the state, the 2016 policy (the “Transportation Art Policy”) requires artists to assign their “entire rights, title and interest in” such works of art to Caltrans, including their “common law and federal copyright ownership rights.” The artist must execute a copyright assignment and transfer agreement, which Caltrans must approve, before the art is installed. This requirement exists even though the policy assumes that certain local “public agencies,” not the state of California itself, will be responsible for commissioning works of art; the policy directs the commissioning agency for a given work of art to also sign onto the assignment and transfer agreement.This Note argues that state policies that, like Caltrans’, require a transfer of copyright in works of public art are ill-fitted to their purposes, and that the goals of copyright law are better served by alternative contractual arrangements. In Part I, I provide an overview of the legal landscape in the United States with respect to transfers of copyright ownership, visual artists’ moral rights, and public art commissions. In Part II, I outline the substance of Caltrans’ Transportation Art Policy and the possible justifications for its 2016 revision, and then show why the policy is both a poor fit for those presumptive objectives and an unwarranted burden on stakeholders. Finally, in Part III, I discuss alternatives to public art policies that require copyright transfer. I argue that states or state agencies seeking to own public artwork should, as Caltrans once did, allow artists to retain copyright provided that they grant the state a nonexclusive license for reasonable public uses. The advantage of such an approach—which many other states already employ—is that it offers reasonable protection for the state’s legitimate interests in avoiding liability and enforcing the copyright, without the attendant harms to artistic creativity and to the public.
{"title":"Highway Art Policy Revisited: Rethinking Transfers of Copyright Ownership in State-Owned Transportation Artwork","authors":"Rachel Horn","doi":"10.7916/JLA.V43I2.4743","DOIUrl":"https://doi.org/10.7916/JLA.V43I2.4743","url":null,"abstract":"In 2016, the California Department of Transportation (\"Caltrans\") revised its policy standards with respect to the intellectual property rights of artists who create works of public art installed within the state highway system. While Caltrans had previously allowed artists to keep their copyrights subject to a nonexclusive license of certain reproduction rights to the state, the 2016 policy (the “Transportation Art Policy”) requires artists to assign their “entire rights, title and interest in” such works of art to Caltrans, including their “common law and federal copyright ownership rights.” The artist must execute a copyright assignment and transfer agreement, which Caltrans must approve, before the art is installed. This requirement exists even though the policy assumes that certain local “public agencies,” not the state of California itself, will be responsible for commissioning works of art; the policy directs the commissioning agency for a given work of art to also sign onto the assignment and transfer agreement.This Note argues that state policies that, like Caltrans’, require a transfer of copyright in works of public art are ill-fitted to their purposes, and that the goals of copyright law are better served by alternative contractual arrangements. In Part I, I provide an overview of the legal landscape in the United States with respect to transfers of copyright ownership, visual artists’ moral rights, and public art commissions. In Part II, I outline the substance of Caltrans’ Transportation Art Policy and the possible justifications for its 2016 revision, and then show why the policy is both a poor fit for those presumptive objectives and an unwarranted burden on stakeholders. Finally, in Part III, I discuss alternatives to public art policies that require copyright transfer. I argue that states or state agencies seeking to own public artwork should, as Caltrans once did, allow artists to retain copyright provided that they grant the state a nonexclusive license for reasonable public uses. The advantage of such an approach—which many other states already employ—is that it offers reasonable protection for the state’s legitimate interests in avoiding liability and enforcing the copyright, without the attendant harms to artistic creativity and to the public.","PeriodicalId":425688,"journal":{"name":"IRPN: Innovation & Copyright Law & Policy (Sub-Topic)","volume":"10 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":"129056944","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}
Exchanges in markets for technology (MfT) have grown rapidly in recent years. MfT involve transactions for the use, diffusion and creation of technology. In this article we conduct a systematic review of the emerging market for technology literature and examine one of its most important aspects, corporate technology licensing. Using thematic analysis, we systematically review 78 papers published in 29 journals over 30 years covering the academic disciplines of technology/knowledge management, strategic management, entrepreneurship, innovation management and industrial economics. Based on this analysis, we present an organizing framework for the most prominent determinants, causal connections and outcomes of technology licensing research to date, and identify a research agenda highlighting important avenues for future research in this domain
{"title":"Determinants, Causal Connections and Outcomes of Corporate Technology Licensing: A Systematic Review and Research Agenda","authors":"Noni E. Symeonidou, Johan Bruneel","doi":"10.1111/radm.12278","DOIUrl":"https://doi.org/10.1111/radm.12278","url":null,"abstract":"Exchanges in markets for technology (MfT) have grown rapidly in recent years. MfT involve transactions for the use, diffusion and creation of technology. In this article we conduct a systematic review of the emerging market for technology literature and examine one of its most important aspects, corporate technology licensing. Using thematic analysis, we systematically review 78 papers published in 29 journals over 30 years covering the academic disciplines of technology/knowledge management, strategic management, entrepreneurship, innovation management and industrial economics. Based on this analysis, we present an organizing framework for the most prominent determinants, causal connections and outcomes of technology licensing research to date, and identify a research agenda highlighting important avenues for future research in this domain","PeriodicalId":425688,"journal":{"name":"IRPN: Innovation & Copyright Law & Policy (Sub-Topic)","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121778722","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}
An injunction is usually understood as an order requiring the person to whom it is directed to perform a particular act or to refrain from carrying out a particular act. This conventional definition of injunction addresses a person who acts against the law – an infringer – and should be stopped from doing so. Such a person acts in a way that the rights of other people prohibit. Seeking an injunction is thus nothing but the request of a right holder to an authority (court) for the individual compliance of a particular person with the abstract letter of the law. Injunctions against intermediaries, based on Art. 8(3) of the InfoSoc Directive and Art. 11(III) of the Enforcement Directive , however, do not target such persons. They address by-standers who (also) comply with the law. The basis for this kind of injunction is thus not an act of disrespect towards the rights of others, but the mere existence of circumstances giving hope to right holders, that if they are assisted by such a person, they will be better off. Put differently, such injunctions want to achieve better enforcement by seeking a help of intermediaries who can do more, but do not have to, as they did all the law required from them in order to avoid liability in tort.This paper thus, as its primary goal, examines a two tier model of regulating intermediaries. A situation where intermediaries do not owe any duty of care under tort law, but are still obliged by injunctions (accountable) to provide assistance. It undertakes a thorough law and economics analysis of Intermediary liability and conceptualizes the role of injunctions against non-infringing intermediaries. The analysis is structured as follows. In the first step, an economic analysis of tort law, injunctions and market transactions is used to understand functioning of the different liability regimes, such as negligence rule and strict liability (see Part 2 and 3). In the second step, the framework is applied to Internet intermediaries and the optimal legal regulation is suggested (see Part 4). In the third step, the findings are summarizes into policy lessons (see Part 5) pertinent to two currently pending debates: should the policy makers (1) replace notice-and-take down policy by the stay-down policy and (2) should they export, reform or entirely repeal the European policy of injunctions against non-infringing intermediaries based on Art. 8(3) of the InfoSoc Directive and Art. 11(III) of the Enforcement Directive.
{"title":"Accountable, Not Liable: Injunctions Against Intermediaries","authors":"Martin Husovec","doi":"10.2139/ssrn.2773768","DOIUrl":"https://doi.org/10.2139/ssrn.2773768","url":null,"abstract":"An injunction is usually understood as an order requiring the person to whom it is directed to perform a particular act or to refrain from carrying out a particular act. This conventional definition of injunction addresses a person who acts against the law – an infringer – and should be stopped from doing so. Such a person acts in a way that the rights of other people prohibit. Seeking an injunction is thus nothing but the request of a right holder to an authority (court) for the individual compliance of a particular person with the abstract letter of the law. Injunctions against intermediaries, based on Art. 8(3) of the InfoSoc Directive and Art. 11(III) of the Enforcement Directive , however, do not target such persons. They address by-standers who (also) comply with the law. The basis for this kind of injunction is thus not an act of disrespect towards the rights of others, but the mere existence of circumstances giving hope to right holders, that if they are assisted by such a person, they will be better off. Put differently, such injunctions want to achieve better enforcement by seeking a help of intermediaries who can do more, but do not have to, as they did all the law required from them in order to avoid liability in tort.This paper thus, as its primary goal, examines a two tier model of regulating intermediaries. A situation where intermediaries do not owe any duty of care under tort law, but are still obliged by injunctions (accountable) to provide assistance. It undertakes a thorough law and economics analysis of Intermediary liability and conceptualizes the role of injunctions against non-infringing intermediaries. The analysis is structured as follows. In the first step, an economic analysis of tort law, injunctions and market transactions is used to understand functioning of the different liability regimes, such as negligence rule and strict liability (see Part 2 and 3). In the second step, the framework is applied to Internet intermediaries and the optimal legal regulation is suggested (see Part 4). In the third step, the findings are summarizes into policy lessons (see Part 5) pertinent to two currently pending debates: should the policy makers (1) replace notice-and-take down policy by the stay-down policy and (2) should they export, reform or entirely repeal the European policy of injunctions against non-infringing intermediaries based on Art. 8(3) of the InfoSoc Directive and Art. 11(III) of the Enforcement Directive.","PeriodicalId":425688,"journal":{"name":"IRPN: Innovation & Copyright Law & Policy (Sub-Topic)","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131642910","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}
Marks are traditionally said to serve three functions that are separate from the goals of other forms of IP: source identification, advertising, and guarantee of quality. The story, however, that patents and copyrights incentivize creation and that trademarks do not fulfill that purpose does not withstand scrutiny. This Article argues that brands have evolved in such a way that they serve important incentivizing purposes of their own, and that trademark law influences their ability to do so. This Article identifies three generally neglected functions of trademarks. The first pertains to the creation of original, unique marks and brands in and of themselves. Indeed, this Article contends that marks and brands possess a fan base that engages in artistic and other appreciation similar to the enjoyment derived from copyrighted works. The second underexplored function of trademarks and brands is to combine with products and provide new hedonic experiences to consumers in a way that is qualitatively little different from experiences of copyrighted or patented goods. Third, and perhaps most controversially, trademarks and brands — in part, but not exclusively, through the creation of status goods — may incentivize socially desirable behavior such as hard work and productivity that may increase overall economic welfare. This Article thus seeks to restore, or rather construct for the first time, as a theoretical matter the stature of trademarks as a full member of the family of intellectual property. The conclusion results that any future changes to trademark law and policy must account for effects on the incentivizing functions of marks.
{"title":"Branded","authors":"Irina D. Manta","doi":"10.2139/ssrn.2752840","DOIUrl":"https://doi.org/10.2139/ssrn.2752840","url":null,"abstract":"Marks are traditionally said to serve three functions that are separate from the goals of other forms of IP: source identification, advertising, and guarantee of quality. The story, however, that patents and copyrights incentivize creation and that trademarks do not fulfill that purpose does not withstand scrutiny. This Article argues that brands have evolved in such a way that they serve important incentivizing purposes of their own, and that trademark law influences their ability to do so. This Article identifies three generally neglected functions of trademarks. The first pertains to the creation of original, unique marks and brands in and of themselves. Indeed, this Article contends that marks and brands possess a fan base that engages in artistic and other appreciation similar to the enjoyment derived from copyrighted works. The second underexplored function of trademarks and brands is to combine with products and provide new hedonic experiences to consumers in a way that is qualitatively little different from experiences of copyrighted or patented goods. Third, and perhaps most controversially, trademarks and brands — in part, but not exclusively, through the creation of status goods — may incentivize socially desirable behavior such as hard work and productivity that may increase overall economic welfare. This Article thus seeks to restore, or rather construct for the first time, as a theoretical matter the stature of trademarks as a full member of the family of intellectual property. The conclusion results that any future changes to trademark law and policy must account for effects on the incentivizing functions of marks.","PeriodicalId":425688,"journal":{"name":"IRPN: Innovation & Copyright Law & Policy (Sub-Topic)","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124559341","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}
The Hungarian Copyright Act (HCA) includes a separate chapter on the terms of license (“use”) contracts. The provisions of the HCA serve as lex specialis against the background of general and special rules of contract law codified by the Hungarian Civil Code (HCC). From a historical point of view, the birth of software as a new type of protected work encouraged the reform of copyright contract rules. Nevertheless, the HCA does not contain specific rules on FOSS and CC licenses. It has certain rules on non-written (oral) contracts, introduced especially for these types of licenses entering into Hungarian legal practice. Both pieces of legislation mentioned above apply in relation to FOSS and CC licenses.
{"title":"Chapter 12: License Contracts, Free Software and Creative Commons in the Hungarian Law","authors":"Grad-Gyenge Anikó, Péter Mezei","doi":"10.2139/SSRN.2777336","DOIUrl":"https://doi.org/10.2139/SSRN.2777336","url":null,"abstract":"The Hungarian Copyright Act (HCA) includes a separate chapter on the terms of license (“use”) contracts. The provisions of the HCA serve as lex specialis against the background of general and special rules of contract law codified by the Hungarian Civil Code (HCC). From a historical point of view, the birth of software as a new type of protected work encouraged the reform of copyright contract rules. Nevertheless, the HCA does not contain specific rules on FOSS and CC licenses. It has certain rules on non-written (oral) contracts, introduced especially for these types of licenses entering into Hungarian legal practice. Both pieces of legislation mentioned above apply in relation to FOSS and CC licenses.","PeriodicalId":425688,"journal":{"name":"IRPN: Innovation & Copyright Law & Policy (Sub-Topic)","volume":"58 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130298242","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}
The paradigmatic roles of copyright and patent laws have been, respectively, to protect original authorial expressions from illicit copying and novel and nonobvious functional designs (if they have been appropriately claimed and examined by patent officials) from illicit uses. It would be convenient if copyright law could be assigned the role of protecting the expression in computer programs and patent law the role of protecting program functionality. While courts continue to try to distinguish between program expression and program functionality, this distinction has proven elusive in the decades since the U.S. Congress decided to extend copyright protection to computer programs.For more than twenty years, a series of court cases have held that copyright infringement does not occur when a second comer needs to copy some aspects of another firm’s program in order to achieve compatibility with other programs. Courts have deemed the functional requirements for achieving compatibility to be unprotectable elements of these copyrighted programs, even though more than a modicum of creativity may have imparted originality to these elements.The seeming consensus that program interfaces necessary for interoperability are unprotectable by copyright law was recently called into question by the Court of Appeals for the Federal Circuit (CAFC) in Oracle Am., Inc. v. Google Inc. At issue was whether the command structure of certain elements of the Java application program interface (API) was protectable by copyright law. The CAFC reversed a lower court ruling that this command structure was an unprotectable method of operation, or alternatively that copyright protection was unavailable under the merger doctrine. The CAFC was untroubled by the prospect that software developers might obtain both patent and copyright protection for APIs of computer programs. There was, in its view, no need to sort out functionality and expression in computer programs. Copyright could protect both as long as there was a modicum of creativity to support the claim of copyright. The Oracle decision has rekindled a decades-old debate, which many had thought had been settled in the late 1990s, about the proper scope of copyright protection for computer programs and how courts should go about analyzing claims of software copyright infringement. The U.S. Supreme Court decision not to review the Oracle decision leaves the CAFC ruling intact for the time being.This Article takes issue with the CAFC’s ruling and analysis. It aims to provide guidance about how courts should assess claims of copyright infringement in computer program cases. Part II reviews some key software copyright decisions and explains why the Second Circuit’s test for software copyright infringement is more compatible with traditional principles of copyright law than the Third Circuit’s is-there-any-other-way-to-do-it test. The Second Circuit recognized that sometimes external factors, such as the need to be compatible wi
{"title":"Functionality and Expression in Computer Programs: Refining the Tests for Software Copyright Infringement","authors":"Pamela Samuelson","doi":"10.2139/ssrn.2667740","DOIUrl":"https://doi.org/10.2139/ssrn.2667740","url":null,"abstract":"The paradigmatic roles of copyright and patent laws have been, respectively, to protect original authorial expressions from illicit copying and novel and nonobvious functional designs (if they have been appropriately claimed and examined by patent officials) from illicit uses. It would be convenient if copyright law could be assigned the role of protecting the expression in computer programs and patent law the role of protecting program functionality. While courts continue to try to distinguish between program expression and program functionality, this distinction has proven elusive in the decades since the U.S. Congress decided to extend copyright protection to computer programs.For more than twenty years, a series of court cases have held that copyright infringement does not occur when a second comer needs to copy some aspects of another firm’s program in order to achieve compatibility with other programs. Courts have deemed the functional requirements for achieving compatibility to be unprotectable elements of these copyrighted programs, even though more than a modicum of creativity may have imparted originality to these elements.The seeming consensus that program interfaces necessary for interoperability are unprotectable by copyright law was recently called into question by the Court of Appeals for the Federal Circuit (CAFC) in Oracle Am., Inc. v. Google Inc. At issue was whether the command structure of certain elements of the Java application program interface (API) was protectable by copyright law. The CAFC reversed a lower court ruling that this command structure was an unprotectable method of operation, or alternatively that copyright protection was unavailable under the merger doctrine. The CAFC was untroubled by the prospect that software developers might obtain both patent and copyright protection for APIs of computer programs. There was, in its view, no need to sort out functionality and expression in computer programs. Copyright could protect both as long as there was a modicum of creativity to support the claim of copyright. The Oracle decision has rekindled a decades-old debate, which many had thought had been settled in the late 1990s, about the proper scope of copyright protection for computer programs and how courts should go about analyzing claims of software copyright infringement. The U.S. Supreme Court decision not to review the Oracle decision leaves the CAFC ruling intact for the time being.This Article takes issue with the CAFC’s ruling and analysis. It aims to provide guidance about how courts should assess claims of copyright infringement in computer program cases. Part II reviews some key software copyright decisions and explains why the Second Circuit’s test for software copyright infringement is more compatible with traditional principles of copyright law than the Third Circuit’s is-there-any-other-way-to-do-it test. The Second Circuit recognized that sometimes external factors, such as the need to be compatible wi","PeriodicalId":425688,"journal":{"name":"IRPN: Innovation & Copyright Law & Policy (Sub-Topic)","volume":"284 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114492077","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}
The rising star of scholarly publishing is Open Access. Even some traditional journals now offer this option on author payment, and many full freely accessible journals are now available to scholars, providing relief to research institutions increasingly unable to afford the escalating subscription rates of serials. However, proper recognition of full Open Access journals by the community remains a major obstacle to overcome if they are to become a viable alternative for scholarly communication. Through a survey, this work investigates economics scholars’ attitudes to OA, and attempts to outline the state of practices and norms governing individuals’ publication choices.
{"title":"Open Access Journals & Academics’ Behaviour","authors":"Matteo Migheli, G. Ramello","doi":"10.2139/ssrn.2408460","DOIUrl":"https://doi.org/10.2139/ssrn.2408460","url":null,"abstract":"The rising star of scholarly publishing is Open Access. Even some traditional journals now offer this option on author payment, and many full freely accessible journals are now available to scholars, providing relief to research institutions increasingly unable to afford the escalating subscription rates of serials. However, proper recognition of full Open Access journals by the community remains a major obstacle to overcome if they are to become a viable alternative for scholarly communication. Through a survey, this work investigates economics scholars’ attitudes to OA, and attempts to outline the state of practices and norms governing individuals’ publication choices.","PeriodicalId":425688,"journal":{"name":"IRPN: Innovation & Copyright Law & Policy (Sub-Topic)","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114954444","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}
The trade-off between the harms of copyright infringement and the harms to innovation from overzealous enforcement have been central to the copyright debate for decades. US courts have tried to fashion a body of law that strikes a balance between these dangers. Two related trends in copyright enforcement threaten to upend this balance. First, the federal government has begun to criminally prosecute online intermediaries who allegedly facilitate the infringing activities of users. The threat of civil liability already gives entrepreneurs strong incentives to follow the law, so adding criminal penalties may cause them to become excessively risk-averse, depriving consumers of valuable innovations. Second, using civil forfeiture powers granted by the 2008 PRO-IP Act, the federal government has begun seizing the domain names, servers, and other assets of online intermediaries. This power to seize assets prior to conviction is making a mockery of defendants’ constitutional rights. These two trends threaten both the rule of law and online innovation.
{"title":"How the Criminalization of Copyright Threatens Innovation and the Rule of Law","authors":"Timothy B. Lee","doi":"10.2139/ssrn.3847005","DOIUrl":"https://doi.org/10.2139/ssrn.3847005","url":null,"abstract":"The trade-off between the harms of copyright infringement and the harms to innovation from overzealous enforcement have been central to the copyright debate for decades. US courts have tried to fashion a body of law that strikes a balance between these dangers. Two related trends in copyright enforcement threaten to upend this balance. First, the federal government has begun to criminally prosecute online intermediaries who allegedly facilitate the infringing activities of users. The threat of civil liability already gives entrepreneurs strong incentives to follow the law, so adding criminal penalties may cause them to become excessively risk-averse, depriving consumers of valuable innovations. Second, using civil forfeiture powers granted by the 2008 PRO-IP Act, the federal government has begun seizing the domain names, servers, and other assets of online intermediaries. This power to seize assets prior to conviction is making a mockery of defendants’ constitutional rights. These two trends threaten both the rule of law and online innovation.","PeriodicalId":425688,"journal":{"name":"IRPN: Innovation & Copyright Law & Policy (Sub-Topic)","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129198691","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}
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