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Abstract:
This paper first described the present state of international protection of geographical indications (GIs) such as Bourbon, Roquefort, and Bordeaux. Legal protection for GIs mandated in the TRIPS Agreement is implemented through appellations law in France and through certification mark systems in the United States and Canada. The paper then turns to the continuing debate between the European Union (EU) and other industrialized economies over this unusual form of intellectual property. The EU claims that increased GI protection would help developing countries, but, in fact, the increased protection proposed would principally secure larger monopoly rents to European farmers. Among other things, the EU wants the return of 41 words - like parmesan, mozzarella, champagne, and chablis.

trademark, geographical indications, intellectual property

Abstract:
This Article first describes three distinct visions of the relationship between the Internet and law that appeared in the 1990s: what the author calls the no-law Internet, the Internet as separate jurisdiction, and Internet law as translation. It is the third which now effectively dominates practical discussions of Internet law and policy issues. The project of translation involves more than importing traditional legal concepts into the Internet environment; it is often an attempt to transpose into cyberspace balances of social, political, and economic interests drawn for, and accepted in, the physical world. The Article critiques American legal scholars for failing to appreciate the transnational problem of legal norms for cyberspace and how the Internet is forcing a certain amount of convergence of legal norms among disparate national systems. The Article then proposes a preliminary taxonomy of how convergent legal norms are being created for the Internet.

Abstract:
Laws concerning intellectual property have been part and parcel of the international harmonization of commercial law for over a century. With the 1994 TRIPS Agreement, international standards for protecting intellectual property were firmly woven into the larger structure of global economic integration. Since then, there has been continued, rapid development of international legal norms for protecting intellectual property. This paper, however, concerns two areas of intellectual property law that have shown themselves resistant to harmonization: extra-copyright protection of databases and the broader field of information patents. With database protection, the EU moved decisively to create this kind of intellectual property in 1996; half a decade later the US has no such law and protection of databases is uncertain. With information patents,the US provides robust patent protection across the whole range of information patents, while Europe has expressly declined to embrace business method patents and patenting of software inventions remains uncertain.

For each of these two areas, this paper offers descriptive lessons about the political realities of intellectual property policy; a normative account of when intellectual property policy should be changed; and, finally, an analysis of how future policy developments in these two areas of intellectual property can and should be held to that higher normative standard.

Intellectual Property, Data Bases, Patents, Software, Business Methods, Political Economy, Harmonization, Comparative Law

Abstract:
This article proposes that, as a copyright work ages, the scope of fair use, at least as to derivative works and uses, should expand. This is because the market for a copyrighted work has a temporal dimension; the copyrighted work has a market of a fixed number of years. For example, in considering the fourth element of section 107 fair use, courts have discussed two kinds of situations in which the market for the plaintiff's work can be adversely affected: (a) situations where this particular defendant's action adversely affected the plaintiff's market, and (b) situations where the defendant's action, if it became widespread, would adversely affect the plaintiff's market. But in the second situation, when the alleged infringement occurs becomes important. The later the alleged infringement occurs in the copyright term, the less widespread the practice could become - when the market for the work is understood as a market across time. Further supports for the idea that fair use should become broader in the last period of the copyright term comes from the basic investment structure of copyrighted works.

Copyright, Fair Use, Intellectual Property, Film, Music, Entertainment Law, Authorship

Abstract:
This article describes how historical claims frequently made in arguments about the propertization of copyright are incomplete, focusing on three examples: that intellectual property is a much older phrase than current scholarship would lead one to believe; that, regardless, copyright has been understood as property (literary, artistic, etc.) since the 18th century; that infringement of all sorts have generally been called piracy for at least that long; and that appeals to Thomas Jefferson for weaker intellectual property rights are misplaced for multiple reasons. Because copyright has been viewed as property for hundreds of years, scholars who connect the increasing strength of copyright to the rise of the phrase intellectual property must make an argument completely absent from the literature - that intellectual property somehow hypnotizes in a way that literary property or plain old property did not. The paper then turns to analysis of the propertization claims themselves, showing the limits of these arguments and suggesting directions in which this scholarship might go. Finally, the paper proposes that the actual reason commentators are increasingly uncomfortable with copyright as property is the boundaries problem - the fuzziness of a copyright's borders in a world where many more people are creating and recreating expression as their vocations and avocations. As more and more of us emigrate to the realm of expression, the demands for both expressive property and expressive space put tremendous pressure on the copyright system.

copyright, piracy, propertization

Abstract:
American copyright law has a widely recognized prohibition against the copyrighting of titles, short phrases, and single words. Despite this bar, effective advocacy has often pushed courts into recognizing independent copyright protection for smaller and smaller pieces of expression, particularly in recent cases involving valuation and taxonomy systems. Copyright case law is rife with dicta suggesting protection of short phrases and single words.

This instability in copyright law is rooted in the fiction that we deny copyright protection to short phrases and single words because they lack originality. In fact, there are many short phrases that cross copyright's low threshold of originality. This paper proposes that in order to stem any trend toward independent copyright protection of such microworks, we must recognize - and embrace - our implicit notion of a work. Single words, numbers, and short phrases are properly denied independent copyright protection not because they always lack originality, but because they are never works.

copyright, intellectual property

Abstract:
When the United States acceded to the Berne Convention in 1988, Congress concluded that a compendium of causes of action under American law, including Lanham Act claims, provided the moral rights protections mandated by Berne Article 6bis. This claim of patchwork protection of moral rights has always been widely criticized, but became more dubious in the wake of the Supreme Court's 2003 decision in Dastar v. Twentieth Century Fox. In Dastar, the Court held that vis-a-vis works in the public domain there is no Lanham section 43(a) obligation to credit the original creator or copyright owner as the origin of the work.

The Dastar ruling was unquestionably important for a robust public domain, but makes it more difficult for the United States to claim that it provides Article 6bis protection. This paper concludes that Dastar reached the right result in a poorly reasoned way, but that Justice Scalia's opinion, properly read, is much narrow than many believe. The paper concludes that American scholars who have been critical of the patchwork protection argument have often been unfamiliar with Berne implementation in other countries and have not judged the U.S.'s Berne compliance by public international law standards.

moral rights, Lanham Act, Dastar

Abstract:
This is a reproduction of John Locke's 1694(-5) memorandum opposing renewal of the Licensing Act, along with a short introduction. In the memorandum, Locke strongly attacks the monopoly held by the Stationers Company under the Licensing Act while simultaneously proposing a limited term property right in books - the approach finally accepted in the author-centered Statute of Anne. One option proposed by Locke is that authors' property rights in their works would be recognized for an author's life +70 year term. The introduction provides some historical background on the memorandum and reviews some previous treatments of the memorandum in intellectual property commentary.

John Locke, copyright, intellectual property

Abstract:
Following work published in 2006, this article explores the history of the phrase 'intellectual property' as it was used in the 19th century and early 20th century by jurists speaking French, Spanish, Italian, and English. During this period 'intellectual property' was used by many commentators to refer to copyright alone; indeed, in Spanish, the phrase unambiguously meant just copyright. The article sketches out how officials in WIPO's predecessor organization rechristened it an 'intellectual property' entity and helped establish the modern, umbrella sense of the term for patents, copyrights, trademarks, etc. Finally, the manuscript explores how the property-or-not debate has animated discussions of copyright theory throughout the history of copyright law.

intellectual property, BIRPI, Berne Convention, Paris Convention, WIPO, Pouillet, copyright, trademark, patent, legal history

Abstract:
Before mid-2003, the recording industry's legal attack against peer-to-peer (P2P) systems was limited to the purveyors of P2P. End users were left untouched, the conventional wisdom being that it's not good business to sue one's own customers. Seven thousand lawsuits against P2P users later, that conventional wisdom appears wrong.

This essay looks at the conflicting evidence and concludes that the most reasonable interpretation of the data is that suing end users has meaningfully dampened file sharing among people who can afford to buy music; that suing these end-users may be a financially self-sustaining activity; and that, if left unchecked, unauthorized P2P file sharing would increasingly substitute for legitimate sales. The de facto price discrimination produced by filing sharing has triggered official price discrimination through a combination of spoofing, lawsuits, differently priced download services, and discounts for university students.

But this new balance is precarious and the problem of infringement-based business models remains. The most reasonable way to address that problem while preserving P2P technology is to fully restore knowledge and intent as components of third party liability in copyright. This requires revision of the Sony test, revision already started by the lower courts in Napster and Aimster.

Internet, Intellectual Property, Copyright

Abstract:
It is black letter doctrine in copyright law that facts are not copyrightable: facts are discovered, not created - so they will always lack the originality needed for copyright protection. As straightforward as this reasoning seems, it is fundamentally flawed. Using the "social facts" theory of philosopher John Searle, the paper explores a variety of "created facts" cases - designation systems, systematic evaluations, and privately-written laws - in which original expression from private individuals is adopted by social convention and, thus, the expression generates facts in our social reality. In the course of this discussion, the paper places facts in their historical and philosophical context; explores how courts conflate facts with expressions of fact; and explains the difference between social facts created by expression and the "facts" of literature and fiction.

Having established that the copyrighted works discussed in these cases produce facts, the question arises whether copyright's merger doctrine eliminates the copyright protection - a result that is both seemingly harsh and seemingly necessary. Inspired by elements of the "essential facilities" doctrine, the paper proposes a recalibration of the merger doctrine to acknowledge that "created facts" are a unique situation in which the incentive of copyright may be needed not just to generate the expression, but also needed to generate the facts.

copyright

Abstract:
SABAM v. Scarlett is a June 29, 2007 decision from a Belgian trial court ordering an ISP in that country to install filtering software to prevent the ISP's users from accessing unauthorized music downloads via peer-to-peer systems. The court made this order following an expert report on the feasibility of such filtering. The decision has generated a fair amount of controversy and this translation is intended to provide intellectual property teachers and practitioners with a citable, English source for the opinion. Users are welcome to reproduce the translation, in whole or in excerpts, for any non-profit educational, non-profit research, or other non-commercial purpose. This translation inaugurates the "translation series" in the Cardozo Arts & Entertainment Law Journal; the translators welcome comments.

Abstract:
Following the Supreme Court's 1991 Feist decision, intellectual property and Constitutional law scholars have debated whether extra-copyright protection of databases can be established by Congress under its Commerce Clause power. This article presents the problem as one of the gravitational zone of the Commerce Clause versus that of the Copyright and Patent Clause. The article reasons that the Supreme Court decisions in International News Service v. Associated Press, Zacchini v. Scripps-Howard, and the 19th century Trademark Cases all point to the possibility of limited protection of databases under the Commerce Clause. The Article also considers the constitutionality of extra-copyright protection of databases against First Amendment claims as well as pre-emption arguments against state law misappropriation protection of databases.