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Abstract:
The appropriation of local knowledge within the framework of existing global intellectual property rules is a major issue of contention today. The discourse surrounding this issue is highly charged with accusations of piracy from developed countries countered with allegations of biopiracy from developing countries. Flowing beneath the surface of this dialogue are multiple levels of historical experience. The time of formation of intellectual property frameworks in the nineteenth century was a period when evolutionary views of the development of human societies were paramount. Local knowledge (folklore) and societies seen as possessing such knowledge were seen as retrograde survivals of a stage through which civilized societies had already passed and left far behind. Consequently, local knowledge was subject to devolutionary assumptions that meant that an inverse relationship was believed to exist between degree of civilization and amount of local knowledge such as folklore. Local knowledge was thus seen as something that the civilized did not have. As a result, local knowledge relevant to developing countries, such as folklore, was never protected within developed country national intellectual property systems or multilateral intellectual property frameworks based upon such national systems. Professor Arewa examines the implications of this historical context for current day protection of local knowledge, suggesting that intellectual property categories, rather than being natural, fixed and determinate, are contextually determined ways of protecting creations and inventions deemed to have value. As such, the greatest impediments to protecting local knowledge is seeing the value inherent in local knowledge and designing a protection framework accordingly. In constructing a framework for protection, local knowledge innovation zones, modeled after the successful United States nineteenth century intellectual property development strategy, may serve an important role in both fostering the commercial development of local knowledge while contributing to the development of technological capacity in local communities.

IIntellectual Property, Folklore, Local Knowledge, Local Knowledge Innovation Zones, Value Assignment, Legal Framework, International Law, TRIPs, Agreement on Trade-Related Aspects of Property Rights, Developing Countries, Third World Countries, Local Communities, Traditional Knowledge

Abstract:
Intellectual property treatment of traditional or local knowledge is a major issue of contention today, particularly since the implementation of the TRIPs Agreement, which establishes minimum levels of intellectual property protection for members of the World Trade Organization. Discourse surrounding local knowledge is highly charged with accusations of "piracy" from Western countries countered with allegations of "biopiracy" from Third World countries. Flowing beneath the surface of this dialogue are multiple levels of historical experience. Intellectual property frameworks were formed in the nineteenth century during a period when evolutionary views of the development of human societies were paramount. Local knowledge was subject to devolutionary assumptions that meant that an inverse relationship was believed to exist between degree of civilization and amount of local knowledge such as folklore. As a result, local knowledge was generally not protected within national or multilateral intellectual property frameworks. This lack of protection has significant implications today in a world where such frameworks are being applied on an increasingly global basis.

Intellectual Property, Folklore, Local Knowledge, Local Knowledge Innovation Zones, Value Assignment, Legal Framework, International Law, TRIPs, Agreement on Trade-Related Aspects of Property Rights, Developing Countries, Third World Countries, Local Communities, Traditional Knowledge

Abstract:
This article considers issues of open access from the context of the broader legal information industry as a whole. The structure and contours of the legal information industry have shaped the availability of legal scholarship and other legal information. The competitive duopoly of Lexis and Westlaw is a particularly important factor in considerations of open access. Also significant is the relationship between Lexis and Westlaw and law schools, which form an important market segment for both Lexis and Westlaw. This Article begins by considering the important role information plays in the law. It then notes the increasing industry concentration that has occurred over the last 10-15 years among legal and other publishers. This industry concentration is believed to have contributed to significant price increases for scholarly publications in scientific and other nonlegal fields. This industry concentration has potentially significant implications for questions of access, particularly in the current environment of increasing electronic dissemination of legal information. In addition to examining characteristics of the legal information industry, this Article also looks at the role of dominant players, such as Lexis and Westlaw, and the ways in which information dissemination has changed with the advent of electronic legal information services, including through new publication models such as SSRN and bepress. Consumers of legal information, including commercial users, law school users, and the general public are also considered, particularly with respect to the implications of legal information industry structure for questions of access to legal information in the digital era.

Open Access, Legal Information Industry, Lexis, Westlaw, Legal Publishing, Information market, Legal Scholarship, Electronic medium, Electronic access, Legal databases

Abstract:
Intangibles such as intellectual property rights are an increasingly important source of value for businesses today. This increasing importance has significance for the uses of intangibles by companies and the mechanisms and behaviors by which companies extract value from intangibles. The manners in which holders of intellectual property rights wield such rights can play an important role in shaping the effective functioning of intellectual property frameworks. Although intellectual property rights may serve as important tools of innovation, empirical evidence shows that in many industries intellectual property protection is not a primary means by which innovation is protected. Moreover, increasingly pervasive intellectual property portfolio management strategies are often combined today with broad grants of intellectual property rights. These factors may promote strategic uses of intangibles that are thought to be increasingly characteristic of business practice today. These factors may also permit and even encourage the holders of such rights to use them offensively as strategic weapons in a manner that may actually be a disincentive to diffusion and future innovation. Existing models of intellectual property rights focus to a large extent on assumptions about ex ante incentives for individual creators and inventors. Under the intangibles paradigm, new markets for new products and technologies have arisen that suggest a more complex picture of incentives with respect to intellectual property, some of which may challenge dominant assumptions. The operation of markets for technology and uses of intellectual property rights today also suggest that greater attention should be paid to the implications of the uses of intellectual property rights for markets, market competition and future innovation.

Intangibles, Intellectual Property, Legal Framework, Intellectual Capital, strategic behaviors, competition, innovation, intellectual property portfolio management

Abstract:
Enron has become a symbol: a symbol of excess, an illustration of how a company can base its business on fraudulent, deceptive or even largely non-existent business transactions. The collapse of Enron had a significant impact on the adoption of legislation such as the Sarbanes-Oxley Act, which was intended to prevent the types of fraudulent behavior that occurred at Enron. However, Sarbanes-Oxley and other responses to the business practices of many companies during the late 1990s do not fully address some of the underlying factors that permitted and in fact encouraged the Enrons of the world to represent their companies in a particular fashion. Such legal interventions further do not address underlying factors rooted in the fact that many companies now operate within the context of knowledge economy intangibles paradigm business practices. Current securities law disclosure frameworks are largely based on an implicit assumption about the nature of companies' business operations. Such frameworks were developed during a time period in which the principal business model was one based on the exploitation of tangible assets. Since the latter half of the twentieth century and the advent of the knowledge economy or digital era, an increasing number of companies have begun operating under businesses models in which the predominant source of value comes from intangible resources. As a result of this fundamental change in business models, an intangibles "haze" has come to characterize the application of securities disclosure and accounting rules. This intangibles haze has meant that securities disclosures made by such companies, particularly as reflected in financial statements such as balance sheets, increasingly do not reflect underlying economic reality.

Intangibles, Legal Framework, Accounting, Cisco, Enron, Wal-Mart

Abstract:
Tremendous controversy exists today about legal treatment of hip hop music. Having just reached its thirtieth birthday, hip hop is now the second most popular type of music in the United States and an important musical and cultural force globally. The advent of hip hop has raised serious copyright law concerns. At the core of such concerns is the issue of sampling, or the use of pieces of existing recorded music within hip hop works, which has been deemed in some instances to constitute copyright infringement. Professor Arewa discusses issues that arise in the application of copyright to music generally as well as historical and cultural aspects of the hip hop debate. In discussions of music, particularly in the legal field, hip hop is considered within a tradition that values independent and autonomous authorship of musical works and that consequently reflects pervasive romantic author discourse. Within such discussions, the manner of music production of great masters of the European classical tradition may be seen as a model of musical production against which musical forms such as hip hop are often at least implicitly measured. The image of the classical tradition embedded in such discussions is, however, inaccurate and distorted. The classical music tradition is an invented tradition that was largely constructed in the nineteenth century and that no longer operates as an active tradition to which new works are being added in any quantity. Actual practice within the classical tradition varies significantly from the idealized imagery of this tradition evident in legal discourse about music. The image of the classical tradition is important because through characterizations of this tradition, hip hop musical production is distinguished from other methods of making music in a number of ways through the use of a series of implicit and explicit dichotomies. In looking at this classical tradition historically, however, it is clear that much continuity underlies the production of music generally, particularly in relation to musical borrowing, which was common in the European classical tradition in actuality as opposed to its constructed history. The varied uses of musical borrowing suggest that more careful consideration needs to be given to the extent to which copying and borrowing have been and can be a source of innovation within music and by extension elsewhere. Recognition of such borrowing needs to be incorporated into existing copyright frameworks as a basis for the development of commercial practices and liability rule based legal structures for treatment of music, including hip hop, which uses existing works in its creation.

Musical Composition, Hip Hop, Copyright, Sampling / Borrowing, European Classical Tradition, Contemporary Cultural Tradition, Sociocultural Factors, Cyber-law

Abstract:
On April 2, 2007, Apple Inc. and EMI Music held a joint press conference in London that may be the harbinger of significant changes in the digital music arena. This press conference, whose attendees included EMI Group CEO Eric Nicoli and Apple CEO Steve Jobs, unfolded in an environment of significant technological and commercial changes in the music industry. The shift to the digital era has been a turbulent one for many players in the music industry, particularly as a result of the widespread distribution of unauthorized digital music files and the concurrent significant decline in record industry sales. The Apple-EMI agreement permits Apple to sell EMI Music's entire digital music catalog without digital rights management (DRM), which represents a significant shift from the previous policy of the major record companies. The Apple-EMI announcement should be considered in light of the recent developments in the broader digital music market. Although Apple has now agreed to distribute music from the EMI catalog without DRM, many believe the technological choices that Apple has made in the past surrounding DRM technology have laid the foundation for Apple's market dominance. Until now, Apple has facilitated its market dominance by deliberately limiting interoperability with non-Apple devices and non-Apple online music stores for iPod device and iTunes Music Store ("iTMS") users. Apple's bundling of the iPod and iTMS, which together form a network, has led to lawsuits against Apple alleging antitrust violations ranging from tying to attempted monopolization; some foreign jurisdictions have gone so far as to threaten to ban certain Apple technologies on consumer protection grounds. This Article lays out the topography of the Apple FairPlay controversy, looking closely at the business and market environment within which the iPod/iTMS network arose. This Article outlines some ways in which existing legal frameworks may be applied to the structures and behaviors associated with companies' development of technological and business innovations. It also analyzes the antitrust allegations against Apple and examines Apple's behavior and success in light of the network effects produced by the iPod/iTMS bundle.

networks, network effects, intellectual property, music industry, Apple, iPod, iTunes, digital music, DRM, antitrust, competition law, tying, bundling, interoperability

Abstract:
Although much separates them musically, George Harrison and Michael Bolton share a common legal fate. Both have been held liable in copyright infringement cases in which a court articulated theories of liability based on subconscious infringement. This Article discusses how decisions in the Bolton, Harrison, and other copyright infringement cases reflect a common failing. Such decisions highlight the incomplete nature of the theories of creativity and creation processes in copyright doctrine.

After discussing current approaches to questions of creation, this Article suggests ways in which copyright theory can better incorporate a contextualized understanding of creativity and creation processes. Creativity in copyright is frequently characterized as not involving copying, which is typically thought to be antithetical to both originality and creativity. This stigmatization of copying, however, means that copyright theory cannot adequately account for the reality of not infrequent similarities between works that are a result of copying both ideas and expression in the creation of new works. This missing theoretical link has significant implications for copyright in practice. The lack of legal analysis of the full range of creativity and processes of creation is also a major reason why copyright theory often has such difficulty delineating what constitutes appropriate and inappropriate copying of existing works.

Creativity, Literary Criticism, Musicology, Copyright, Substantial Similarity, Borrowing, Copying, Intertextuality, Formulaic Works, Narratives, Sociocultural Factors

Abstract:
Intellectual property frameworks today reflect an increasing emphasis on framing knowledge and culture within a property rights paradigm. This tendency is evident in all sides of current debates about global intellectual property frameworks. Intellectual property frameworks have historically reflected accommodation and balance between local and global influences as well as private and public interests. An ethos of propertization strains both balances. The imbalance between the local and global and public and private is exemplified in current treatment of local knowledge under global intellectual property frameworks. This article examines the tensions between local and global norms, legal and otherwise, and private and public interests in today's increasingly global intellectual property frameworks. This article also evaluates the potential pitfalls of viewing culture through a propertization lens given the shared nature of many cultural resources. The treatment of culture as property may also have broad implications for both development and capacity. As is the case in intellectual property discussions more generally, the mechanisms of cultural propertization and propertization discourse can influence behavior and even intensify assertions of rights themselves. This article proposes ways to better balance the public and private and local and global in crafting intellectual property frameworks that reflect local norms, local participation and the needs of varied local contexts.

Intellectual Property, Traditional Knowledge, Local Knowledge, International Law, TRIPs, Agreement on Trade-Related Aspects of Property Rights, Developing Countries, Third World Countries, Local Communities, Cultural Property, Capacity, Legal Framework

Abstract:
The rising power of traders has fundamentally transformed financial market networks and risks. Further, the increased complexity of traded securities and trading strategies within financial networks has magnified shortcomings of existing industry risk management practices as well as dominant regulatory regimes. Financial markets are ultimately places where people trade. Broader social and technological changes have altered the nature of trading activities in financial markets. Innovations in technology, financial instruments, and trading strategies have increased financial market efficiency but have also transformed sources of financial market risks. Financial market networks heighten the need for fundamental rethinking of financial market regulation and reassessment of ways both regulators and market participants can better manage risk. This article evaluates the importance of financial networks and related factors such as globalization, complexity, and secrecy for financial markets. This article argues that, as recommended in a recent Department of Treasury Blueprint for future financial market regulation, U.S. adoption of a modified "Twin Peaks" model of regulation may provide for more efficient and effective regulation of financial market activities and risk and help avoid future market crises. This model would move portions of regulatory oversight of existing functional regulators such as the Securities and Exchange Commission into new regulatory bodies that regulate by objective and would establish a separate regulatory function for market risk and market stability oversight. Adoption of this model, combined with the establishment of specific core financial market regulatory principles, should enable regulators and market participants to manage risk more effectively.

trading, securities regulation, compensation, credit crisis, risk, financial market regulation, SEC, derivatives, globalization, secrecy, incentives, regulation, financial market reform, financial networks

Abstract:
In 2004, Eric Clapton released the DVD-CD Sessions for Robert J and the CD Me and Mr. Johnson, which paid homage to Robert Johnson, one of Clapton's greatest musical influences. Clapton is not alone in his reverence of Robert Johnson. The ascension of Robert Johnson to the status of preeminent representative of early recorded blues traditions reflects broader trends in the creation and reception of blues music in the twentieth century. Johnson's position decades after his death is a startling contrast to the circumstances of his short life and the contexts within with he lived and performed.

Robert Johnson was a poor African American itinerant blues musician who died in obscurity under mysterious circumstances in 1938 at a country crossroads near Greenwood, Mississippi. Johnson was one of a number of musicians who made their way through the Mississippi Delta during the time period of his life and death. The legend of Robert Johnson, however, surpasses that of his musical contemporaries: Robert Johnson is the most well known bluesman of his era today. From his humble beginning and obscure death, Robert Johnson later emerged to become one of the biggest influences on rock and roll music, particularly through musicians in Great Britain, many of whom like Eric Clapton, count Robert Johnson as one of their greatest influences. Robert Johnson was one of the first 12 members inducted into the Rock and Roll Hall of Fame. Robert Johnson is far more famous in death than he could ever have envisaged during his lifetime. The story of Robert Johnson is thus an important one for the history of music, particularly in relation to the development of blues music traditions and the rock and roll traditions that emerged from blues.

The story of Robert Johnson is also an important one for copyright. Treatment of many blues musicians of Robert Johnson's era represent an early example of continuing tensions in the application of copyright to a broad range of living musical traditions. Copyright treatment of blues musicians also reflects the difficulties inherent in the application of copyright as a property rule to musical forms, including blues, which are characterized by pervasive borrowing. The reality of musical borrowing is often insufficiently acknowledged in discussions of copyright and music. The intersection of copyright, Robert Johnson's music and blues more generally can reveal something of how copyright law treats creative processes that reflect significant amounts of borrowing. Further, the contexts of application of copyright law to blues, as well as more generally, reflect the continuing influence of hierarchies of culture and power that have long shaped copyright law and its application.

blues, Robert Johnson, music, musical composition, copyright, borrowing, record industry, music industry, sound recordings, African American Musical Tradition, American Musical Tradition

Abstract:
Treatment of musical borrowing under current copyright standards is far too often inequitable. This is evident in the works of George Gershwin, who, for a number of reasons, was able to borrow freely from existing traditions, works and artists, copyright the works he produced that reflected such borrowings, and then restrict future borrowings and reinterpretations of his works. Looking at the operation and the uses of copyright in the specific instance of George Gershwin's musical practice reflects uses of copyright in the musical arena and demonstrates some ways in which current copyright frameworks may not adequately contemplate actual practices of music copyright holders. George Gershwin borrowed from a wide range of musical sources, worked extensively with technical collaborators throughout his career, and immersed himself in African-American musical traditions. Following Gershwin's death, however, the Gershwin family came to control his copyrights, highlighting the role that heirs now play in the actual use of copyright given the fact that copyright duration now extends to seventy years beyond the lives of individual creators. The Gershwin heirs have, in most cases, not permitted borrowing or significant reinterpretation of George Gershwin's works. The ability of heirs to control borrowing from and interpretations of existing musical works reflects the fact that copyright structures to this point have been based on the combining of rights of control and compensation within copyright frameworks. Through various mechanisms, heirs, in particular, tend to exert control over uses of copyright in ways that have little to do with the creation of musical works that is a major rationale for copyright. By potentially significantly limiting borrowing and reinterpretation, the exercise of control over copyright in such instances may actually hinder the creation of later works. Uses of copyright by creators such as Gershwin and his heirs suggest that it would be prudent in some instances to separate the control and the compensation aspects of copyright, particularly in cases of post-mortem artistic legacies. This separation would also involve moving in the direction of a liability-based standard in copyright that permits borrowing other than in instances of unfair use, in contrast to current standards that significantly limit borrowing except in limited instances such as fair use.

Musical Composition, Copyright, George Gershwin, Copyright, Heirs, Control v. Compensation, African American Musical Tradition, American Musical Tradition, Sampling / Borrowing, European Classical Tradition, Sociocultural Factors

Abstract:
Evaluating the application of existing securities laws and regulation in a cyberspace context requires an understanding of how existing legal structures accommodate changing societal or other conditions, including changes resulting from technological innovation and changing business culture and practice, which both encompass and extend beyond changes resulting from technological innovations. Understanding the application of securities regulation in such circumstances represents a distinct response to the familiar problem of applying and borrowing from existing legal frameworks in new contexts. However, since existing securities laws and regulations were originally crafted during an earlier time period, the translation of such frameworks in new contexts leads at times to a questionable outcomes, at least partly because such frameworks represent a response to a particular historical context involving specific business practices that might not be as relevant in the business climate of today. This is particularly true with respect to non-public offerings, which were recognized in the Securities Act of 1933 from its inception. This article assesses the translation of existing securities laws and regulation in the cyberspace context of non-public offerings, focusing specifically on restrictions on general solicitations and advertising in non-public offerings, as well as whether and how structures that exist in real space can be adapted in the cyberspace context.

Securities, Cyberspace, Technological Innovation, Business Culture, Business Practice, Non-public Offerings, General Solicitations, Advertising, Private Offerings, Small Business, Small Business Financing

Abstract:
A 2007 U.K. court case involving Donegal, a private equity fund, and the Republic of Zambia, has contributed to an ongoing debate about the operation of so-called vulture funds in African and other developing countries. Donegal sued Zambia for more than fifty-five million U.S. dollars in connection with a debt owed by Zambia to Romania for Zambia’s acquisition of agricultural machinery from Romania pursuant to a credit agreement dated April 17, 1979. Donegal acquired the Zambian debt from Romania in 1999 at some eleven percent of face value. Although the Donegal court explicitly limited its scrutiny to the legal questions raised by the case rather than questions of morality and humanity, the moral and ethical considerations connected with the activities of vulture investors are significant. This is particularly true in Africa, which in the post-colonial period has experienced poor economic performance in both absolute and relative terms, as well as significant and even increasing levels of poverty. Poverty has exacerbated political instability in Africa. African institutional, political, and economic contexts have bearing on the operation of so-called 'vulture funds', which are typically private equity or hedge funds that seek to profit by repurchasing debt at a discount and then collecting from the debtor country at face value or an even higher amount. Commercial transactions such as the Donegal-Zambia relationship should be considered in light of the realities of such contexts.

Africa, private equity, institutions, vulture funds, vulture investors, hedge funds, creditor, sovereign debt, secondary markets, development, Zambia