Paul Nolan, ‘Generic Trade Marks: Could Booking.com and the Goods/Services Dichotomy Create a New Generic Headache?’

ABSTRACT
Generic trade marks have traditionally been those that have become generic over time. Put simply, they lost their necessary distinctiveness due to societal overuse. Most are familiar with the well-known cases involving common marks that have fallen into the everyday lexicon. There is a further category of trade mark that is registered (and remains registered) despite appearing to be generic ab initio. This was highlighted in the recent decision of United States Patent and Trade Mark Office et al v Booking.com BV. This latter category is more likely to impact on services as opposed to goods due to the proliferation of online services in an exponentially growing digital era. The dichotomy between goods and service will become blurred as the digital era continues to dominate. This article argues that today’s dynamic internet-reliant commercial environment means that genericness has far less time to develop than it formerly did. Further, evidence will be required to show that a generic.com mark has acquired enough distinctiveness to ward off a genericism challenge. Finally, whether service marks survive genericide threats in a digital era remains to be seen and will be decided, as always, on a case-by-case basis.

Nolan, Paul, Generic Trade Marks: Could Booking.com and the Goods/Services Dichotomy Create a New Generic Headache? (2022). Australian Intellectual Property Journal (2022) volume 32(3).

Langford and Anderson, ‘Charity trustees: governance duties and conflicts of interest’

ABSTRACT
This article reports the results of an extensive survey of charity trustees in England and Wales in relation to governance duties and conflicts of interest. The results help discern trustees’ understanding of, and confidence with, their governance duties, their enthusiasm for practical assistance with these duties, the strength of their conflict management procedures, as well as compliance motivations and perceived barriers to enhanced governance and compliance. This in turn assists in critical evaluation of the effectiveness of the governance and regulatory system of charities in England and Wales.

Rosemary Teele Langford and Malcolm Anderson, Charity trustees: governance duties and conflicts of interest, Trusts and Trustees, https://doi.org/10.1093/tandt/ttac071. Published 25 June.

Aloisi and De Stefano, ‘Introduction – Your Boss Is an Algorithm’

ABSTRACT
What effect do robots, algorithms, and online platforms have on the world of work? Using case studies and examples from across the EU, the UK, and the US, this book provides a compass to navigate this technological transformation as well as the regulatory options available, and proposes a new map for the era of radical digital advancements.

From platform work to the gig-economy and the impact of artificial intelligence, algorithmic management, and digital surveillance on workplaces, technology has overwhelming consequences for everyone’s lives, reshaping the labour market and straining social institutions. Contrary to preliminary analyses forecasting the threat of human work obsolescence, the book demonstrates that digital tools are more likely to replace managerial roles and intensify organisational processes in workplaces, rather than opening the way for mass job displacement.

Can flexibility and protection be reconciled so that legal frameworks uphold innovation? How can we address the pervasive power of AI-enabled monitoring? How likely is it that the gig-economy model will emerge as a new organisational paradigm across sectors? And what can social partners and political players do to adopt effective regulation?

Technology is never neutral. It can and must be governed, to ensure that progress favours the many. Digital transformation can be an essential ally, from the warehouse to the office, but it must be tested in terms of social and political sustainability, not only through the lenses of economic convenience. Your Boss Is an Algorithm offers a guide to explore these new scenarios, their promises, and perils.

Aloisi, Antonio and De Stefano, Valerio, Introduction – Your Boss Is an Algorithm (July 14, 2022) in Platform Work and Labour (Hart Publishing, 2022), ISBN 9781509953172.

Matthew Pangle, ‘A Modern Reconceptualization of Copyrights as Public Rights’

ABSTRACT
Copyright law is at a crossroads. In the wake of Oil States Energy Servs, LLC v Greene’s Energy Grp, LLC, the patent, copyright, and intellectual property regimes as a whole, are primed for a modern reconceptualization. At the heart of this reconceptualization is the distinction between public rights, those vindicated by public offices for the public good, and private rights, those vindicated by private citizens for their exclusive government-granted monopolies. Thanks to Oil States, patent rights now exist in two separate bundles – a public bundle including the patent grant itself and a private bundle consisting of a patent owner’s exclusivity rights.

Similar to patents, copyrights exist between a nuanced and delicate tug of war between creator incentive and public benefit. Necessarily, Congress continually legislates around potential market failures that threaten to thwart that delicate balance to keep both creators incentivized to create and the public able to access those creations. Reshaping the current copyright regime into two separate bundles would help Congress continue their market-correcting efforts. Just as with patents, a private bundle would include a copyright owner’s exclusivity rights. However, in addition to copyright grants, copyright’s public bundle of rights would also include conceptualizing copyrights as public rights under the Takings Clause of the Fifth Amendment. While seemingly chipping away at a copyright holder’s exclusive rights over their creative monopoly, conceptualizing copyrights as public rights under the Takings Clause ensures that copyright holders see guaranteed economic incentives to create while allowing the public to access those creations at the copyright holder’s discretion.

Pangle, Matthew, A Modern Reconceptualization of Copyrights as Public Rights (June 1, 2022). Vanderbilt Journal of Entertainment and Technology Law, volume 24, no 3, 2022.

Prince Saprai, ‘Never Let Me Go: Private Law and the Conservative Impulse’

ABSTRACT
In his recent work on private law, John Gardner argues that private law has conservative leanings, which explain its central features. He argues that private law is designed to protect or promote the security interests of victims or likely victims of legal wrongs. Gardner appeals to the thinly conservative value of preserving the lives that people already have to justify this conception. This chapter expresses doubts about whether this thin version of conservativism plays a characteristic or organising role in private law. Instead, it is argued that a thicker or more deeply conservative outlook according to which the purpose of private law is the preservation of social virtue, or our existing forms of civility, reveals much more about private law. It is the value of these social relations rather than security severally considered which private law refuses to let go.

Saprai, Prince, Never Let Me Go: Private Law and the Conservative Impulse (June 24, 2022) in Michelle Madden Dempsey and François Tanguay-Renaud (eds), From Morality to Law and Back Again: Liber Amicorum for John Gardner (Oxford University Press, forthcoming), Faculty of Laws University College London Law Research Paper No 6/2022.

‘Call for Papers: XV Conference ASADIP and General Congress of the International Academy of Comparative Law’

“ASADIP and IACL invite proposals for presentations for a panel on ‘Private International Law and Sustainable Development: Latin American Perspectives’. The panel will be part of the XV Conference of ASADIP ‘A Private International Law to Transform the World’ on 27 October 2022 in Asunción, Paraguay during the General Congress of the International Academy of Comparative Law (IACL, 23-28 October 2022) …” (more)

[Ralf Michaels, Conflict of Laws .net, 28 June]

Jakub Kępiński, ‘Polish industrial property law’

ABSTRACT
In recent years, entrepreneurs have become increasingly aware of the legal means to protect intangible goods, but to ensure proper protection it is necessary to possess certain knowledge of the ways how to do it efficiently. The article is intended to explain the basic issues of Polish industrial property law. The systematics of Polish law including the issues concerning inventions, utility models, industrial designs, trademarks and geographical indication have been presented. However, currently it is not enough to be familiar with the national laws of each member states of the EU. It is also necessary to know EU law which affects strongly the law of individual member states. Therefore Polish industrial property law cannot be interpreted without taking into account EU law. At the same time, it is difficult to accurately delineate the boundaries of EU law. For example, there is the concept of a ‘European patent’, which will be granted by the European Patent Office in Munich. The ‘European Patent’ is based on the European Patent Convention of 5 October 1973. It must be noted that the European patent is not an EU instrument and the Convention itself is not part of the EU acquis communautaire. Nevertheless, it is an important instrument signed by 38 countries, including all EU Member States. The European patent is often referred to as a ‘bundle of national patents’, and patent protection may differ from country to country. On the other hand, the law of EU Member States has only been harmonised to some extent. Thus, there is a need for further harmonisation as well as uniform interpretation of the existing provisions by the national courts and by the Court of Justice of the European Union. Thus, in the coming years, also Polish industrial property law may be expected to have been amended accordingly.

Kępiński, Jakub, Polish industrial property law, Pravovedenie, 65(3), 283-300 (2021), https://doi.org/10.21638/spbu25.2021.303.

Florian Grisel, ‘The centres and margins of transnational law: potential developments and methodological challenges’

ABSTRACT
This article challenges the dominant socio-legal focus on the nation-state by placing emphasis on its margins. Based on a review of the vibrant scholarship in the socio-legal literature, the article sketches the features of social facts that can be found in the interstices of national legal systems and professions. Though these facts are marginalized from the perspective of these systems and professions, their role is no less real in the global arena, in whose centres they are situated. The study of these facts raises methodological questions that this article seeks to address. By attempting to shift the research focus from one object to another, in particular, the article casts light on methodological debates concerning the need to define research categories on a preliminary basis.

Florian Grisel, The centres and margins of transnational law: potential developments and methodological challenges, Journal of Law and Society, https://doi.org/10.1111/jols.12371. First published 27 June.

Aston and Hamilton, ‘On the Development of Marital Law’

ABSTRACT
This issue of the Journal of Legal History results from a conference organized by Dr Jennifer Aston (Northumbria University) and Dr Frances Hamilton (University of Reading) held virtually at Northumbria University on 20th May 2021. At this event we explored the changing legal and cultural definitions of marriage in any geographical location or jurisdiction across the period c 1450 -present day, utilizing a range of historical, literary, artistic, and cultural perspectives. This issue concentrates on the historical, legal, religious, and cultural perspectives on the development of marital law in England and Wales from the sixteenth to the early twentieth century. The interaction between legal, historical, and religious source materials serves to bring fresh insights, demonstrating how women and Dissenting religious groups experienced the laws relating to marriage and were important actors in driving forward legislative and social change.

Jennifer Aston and Frances Hamilton, On the Development of Marital Law, Journal of Legal History, https://doi.org/10.1080/01440365.2022.2092946. Published online 27 June.

Buccafusco and García, ‘Pay-to-Playlist: The Commerce of Music Streaming’

ABSTRACT
Payola – sometimes referred to as ‘pay-for-play’ – is the undisclosed payment, or acceptance of payment, in cash or in kind, for promotion of a song, album, or artist. Some form of pay-for-play has existed in the music industry since the nineteenth century. Most prominently, the term has been used to refer to the practice of musicians and record labels paying radio DJs to play certain songs in order to boost their popularity and sales. Since the middle of the twentieth century, the FCC has regulated this behavior – ostensibly because of its propensity to harm consumers and competition – by requiring that broadcasters disclose such payments.

As streaming music platforms continue to siphon off listeners from analog radio, a new form of payola has emerged. In this new streaming payola, musicians and labels simply shift their payments from radio to streaming music platforms like Spotify, YouTube, TikTok, and Instagram. Instead of going to DJs, payments (or their equivalents) go to platforms, third-party playlisters, and influencers who can help promote a song by directing audiences toward it. Because online platforms do not fall under the Federal Communications Commission’s (FCC’s) jurisdiction, streaming pay-for-play is not currently regulated at the federal level, although some of it may be subject to state advertising disclosure laws.

In this Article, we describe the history and regulation of traditional forms of pay-for-play and explain how streaming payola practices differ. Our account is based, in substantive part, on a novel series of qualitative interviews with music industry professionals. Our analysis finds the normative case for regulating the most common form of streaming payola lacking: contrary to conventional wisdom, we show that streaming pay-for-play paid to third parties, whether disclosed or not, likely causes little to no harm to consumers and may even help independent artists gain access to a broader audience. The case of ‘reverse payola’, in which a platform itself offers promotion in exchange for paying out a lower-than-market royalty rate, is potentially more concerning. Given this state of affairs, regulators should proceed with caution to preserve the potential advantages afforded by streaming payola while avoiding further exacerbating extant inequalities and anticompetitive concerns in the music industry.

Christopher Buccafusco and Kristelia García, Pay-to-Playlist: The Commerce of Music Streaming, 12 UC Irvine Law Review 805-866 (2022).