Category Archives: Intellectual Property

Lyria Bennett Moses, ‘Who Owns Information? Law Enforcement Information Sharing as a Case Study in Conceptual Confusion’

ABSTRACT This article addresses the real impacts of conceptual confusion surrounding statutory language linking entities and information for purposes such as privacy, freedom of information, archiving, policing and evidence laws. The idea of ownership of information (which is assumed in the statutory allocation of powers of control and responsibilities) is captured in a confusing miscellany […]

‘When does a communication to the public under EU copyright law need to be to a “new public”? A new research article’

“Over the past several years, the right of communication to the public in art 3(1) of the InfoSoc Directive has progressively and consistently taken centre stage in the EU copyright system. This has been so also given the great number of referrals (over twenty since the 2006 decision in SGAE) to the Court of Justice […]

‘On Your Bike: Pedalling Your Way to Copyright Protection’

“In the recent case of Brompton Bicycle Ltd v Chedech/Get2Get, the Court of Justice of the European Union (CJEU) ruled that copyright protection can apply to a product shape where it is both functional and original. As a result, any product whose shape is at least in part necessary to obtain a technical result, such […]

Schovsbo and Riis, ‘Concurrent Liability in Contract and Intellectual Property: Licensing Agreements in Light of Case C-666/18, IT Development SAS

ABSTRACT It is the starting point in some jurisdictions that if a licensing agreement has been breached the licensor may choose to base her claims against the licensee on either contract or IPR. This article argues that such a starting point should not be upheld. Not least because of the developments in EU law, the […]

Maurizio Borghi, ‘Reconstructing Fairness: The Problem With Fair Use Exclusivity’

ABSTRACT Exemptions from copyright infringement play a pivotal role in the new digital economy. Tech companies rely heavily on fair use, fair dealing and other statutory exceptions, as well as on safe-harbor limitations of liability. For many businesses, the availability of a copyright exemption represents an asset that is as valuable as other intellectual property […]

Frederick Mostert, ‘Intermediary Liability and Online Trade Mark Infringement: Emerging International Common Approaches’

ABSTRACT This chapter discusses intermediary liability for trade mark infringement from an international perspective. Given that the lack of uniform international guidelines has made tackling counterfeits in a borderless digital environment even more challenging, this chapter demonstrates that common approaches are emerging at the international level for online trade mark infringement. The chapter outlines transnational […]

‘generic.com’

“Today, the Supreme Court ruled (8-1) that merely adding ‘.com’ to a generic term may allow the combination to be protected as a non-generic trademark. In other words, adding ‘.com’ can confer meaning to the consuming public, and thus is not the same as adding ‘company’ or ‘inc’, which does not confer meaning. That was […]

Joseph Fishman, ‘Derivable Works’

ABSTRACT From sequels and spin-offs to physical merchandise, copyright and trademark law together give a creative work’s owner exclusivity over a range of derivative products. It’s often said that this enhanced appropriability encourages firms to spend money producing the underlying works. Less discussed, however, is what kinds of works it’s encouraging them to spend money […]

Kristelia Garcia, ‘Contracts and Copyright: Contemporary Musician Income Streams’

ABSTRACT Musicians typically earn revenues from two sources: copyright law and contract. The proportion of revenue derived from each of these sources varies from artist to artist, but an understanding of the general distribution of earnings from each source is useful when considering proposed legislative amendments. Through a series of qualitative interviews with working musicians, […]

Jacob Victor, ‘Utility-Expanding Fair Use’

ABSTRACT Copyright’s fair use doctrine is increasingly applied to large-scale uses of entire copyrighted works by new digital technologies, such as the Google Books Project. Such technologies – which the Second Circuit recently called ‘utility-expanding’ – aid the public in more efficiently accessing and/or productively using existing copyrighted content. This is new terrain for the […]