Category Archives: Intellectual Property

Betsy Rosenblatt, ‘Belonging as Intellectual Creation’

Abstract: This Article considers the question of ‘what we create when we create’. Certainly, one product of creation is ‘stuff’ – inventions, trademarks, and works of authorship. But the same creative process also generates other public, personal, or social goods, such as skills, self-actualization, and community. This project postulates that for some creators, a sense […]

Maxime Lambrecht, ‘The time limit on copyright: an unlikely tragedy of the intellectual commons’

Abstract: With their ‘tragedy of the commons’ paradigm for intellectual property, Landes and Posner argue that the most important benefit of intellectual property rights is not that they generate incentives to create new works, but that they ensure the efficient exploitation of existing intellectual works. This alternative economic case for IP notably relies on the […]

Shruti Rana, ‘The Global Battle Over Copyright Reform: Developing the Rule of Law in the Chinese Business Context’

Abstract: Nations and businesses around the globe have been battling over copyright protection laws, with industrialized nations pressuring developing nations to adopt ‘Western-style’ copyright regimes. These battles are escalating as copyright piracy grows, while developing nations struggle to formulate reforms that will protect their own intellectual property as well as that of industrialized nations. China […]

Kali Murray, ‘Trademark Law in the Time of Kulturkampf: The Poirean Perspective’

Abstract: This Article explores what is termed the ‘Poirean Perspective’, which is an examination of Professor Marc Poirier’s seminal work in the relationship of property theory to the formation of social identity. The Poirean Perspective offers three key insights on the relationship of property and intellectual property law to conflicts over social identity. First, the […]

Robert Merges, ‘What Kind of Rights Are Intellectual Property Rights?’

Abstract: … I begin by clearing up some misunderstandings about legal rights. The primary one is that rights are absolute. A secondary one is that one need do nothing to obtain or exercise a right, and that therefore any legal entitlement that requires affirmative steps to secure cannot be a right. Next I consider a […]

Shyamkrishna Balganesh, ‘The Immanent Rationality of Copyright Law’

What’s Wrong with Copying? By Abraham Drassinower. Cambridge and London: Harvard University Press. 2015. Pp. xi, 272. $39.95. Why does copyright treat certain kinds of copying as legally actionable? For nearly a century, American copyright thinking has referenced a core consequentialist dogma to answer this question: incentivizing the production of creative expression at minimal social […]

Jordan Lewis, ‘The Future of Disparagement: How Trademark Law Suppresses Freedom of Speech’

Abstract: Do you want your children to live in a world where everyone is placed in a category depending on their race, gender, or economic status? A recent case concerning the Asian-American rock band ‘The Slants’ and their unsuccessful attempt to gain trademark protection where their application was denied because the examining attorney determined that […]

Barton Beebe, ‘Bleistein, the Problem of Aesthetic Progress, and the Making of American Copyright Law’

Abstract: This Article presents a revisionist account of the 1903 Supreme Court case Bleistein v Donaldson Lithographic Co and the altogether decisive and damaging influence it has exerted on the making of modern American copyright law. Courts and commentators have long misunderstood Justice Holmes’s celebrated opinion for the majority in Bleistein in two fundamental ways. […]

Bowrey and Graham, ‘The Placelessness of Property, Intellectual Property and Cultural Heritage Law in the Australian Legal Landscape: Engaging Cultural Landscapes’

Abstract: Australia has an appalling history of dispossession of Aboriginal and Torres Strait Islander (ATSI) Peoples and recognition of this motivates research that seeks to advance Indigenous rights by amending Australian laws in ways that better connect property, people and culture to place and environment. The ambition is often to open up the Australian legal […]

Robert Merges, ‘Against Utilitarian Fundamentalism’

Introduction: I was tempted to pull punches in the title of this piece, but I thought better of it for three reasons. First, the essay I am responding to – ‘Faith-Based IP’ (‘FBIP’) — itself pulls no punches. Second, the title I chose captures what I want to say. Third, I am an inveterate punch […]