Articles

Moral Rights: The Anti-Rebellion Graffiti Heritage of 5Pointz

Published Oct 3, 2018

Abstract This essay proceeds in four sections.  The journey begins with the site’s story.  The first three sections explore in detail the history and development of 5Pointz and the contours of the moral rights litigation, which demolition of the buildings provoked.  That is followed by a detailed review of the unsuccessful effort of the artists… Read more

Capitol Records v. Vimeo: The Peculiar Case of Pre-1972 Sound Recordings and Federal Copyright Law

Published Oct 3, 2018

Abstract In Capitol Records, L.L.C. v. Vimeo, L.L.C., the U.S. Court of Appeals for the Second Circuit held that the “safe harbor” provisions of Section 512 of the federal Copyright Act covered state law claims against an online service provider for infringement of pre-1972 sound recordings.1  The evidentiary basis for this conclusion was slender.  At… Read more

Author-Centered Copyright Enforcement?

Published Oct 3, 2018

Abstract This Symposium explores our flexibility within international copyright law to better serve the purposes of copyright and, specifically, to benefit the individual human creators (authors) of our cultural and intellectual heritage.1  Where other contributions consider the potential for a different allocation of rights, here I explore the potential for author-centered copyright enforcement:  could we… Read more

Remedies, Enforcement and Territoriality

Published Oct 3, 2018

Abstract Thank you to everyone at the Kernochan Center for inviting me to participate and for organizing this symposium.  Like Sam Ricketson, I knew and was very fortunate to work with Jack Kernochan, and I am a better copyright lawyer because of him.  As with all practicing attorneys, I begin with this caveat:  the views… Read more

Remedies, Enforcement and Territoriality

Published Oct 3, 2018

Abstract I would like to start by thanking the Kernochan Center and all its members, in particular Jane Ginsburg, and also Rebecca Giblin, together with all the colleagues who have been involved in the conception of this Symposium.  I am happy to be back after a few years:  I was a Visiting Scholar at Columbia… Read more

Facilitating Transactions and Lawful Availability of Works of Authorship: Online Access to the Cultural Heritage and Extended Collective Licenses

Published Oct 3, 2018

Abstract The importance of providing access to the cultural heritage1 is widely accepted.  Digital technology has supplied powerful new tools to reproduce and disseminate works and at the same time has transformed the demands and expectations of end-users.2  Nevertheless, there are several issues that cultural heritage institutions (“CHIs”) must resolve in order to maintain their… Read more

Expanding the Spectrum: Open Access and the Internet Age

Published Oct 3, 2018

Abstract I speak to you as a practitioner, someone who has represented clients on both ends of the spectrum of copyright. This spectrum has at one end a closed, more traditional, proprietary model of copyright, and, at the other end of the spectrum an open, more collaborative based model of copyright.  And in between those… Read more

Facilitating Transactions and Lawful Availability of Works of Authorship: The U.S. Perspective

Published Oct 3, 2018

Abstract As Associate Register of Copyrights and Director of Registration Policy and Practice at the United States Copyright Office, a significant part of my role is to be an advocate for formalities within the limits of the Berne Convention.  I realize that many view registration, recordation, and other formalities as obstacles to authors.  However, such… Read more

Copyright Reversion in The Creative Industries: Economics and Fair Remuneration

Published Oct 3, 2018

Abstract The European Commission proposal to harmonize fair remuneration in Member States in EC “on copyright in the Digital Single Market”1 included the proposal to harmonize a right to contract reversion.  Fair remuneration is an ambiguous concept for economists:  some EC documents imply the policy is required for efficiency purposes, and in others, purely for… Read more

Foreign Authors’ Enforcement of U.S. Reversion Rights

Published Oct 3, 2018

Abstract Thank you to all of the participants, and especially the first two panelists, for setting one part of the scene.  I am going to talk about the United States’ termination right and some Berne and private international law consequences or implications of the termination right. First, however, I’d like to advert to the two… Read more

More Money for Creators and More Support for Copyright in Society—Fair Remuneration Rights in Germany and the Netherlands

Published Oct 3, 2018

Abstract The current copyright system is intended to provide an incentive for authors to invest more time and effort in the creation of literary and artistic works (utilitarian argument), recognize the acquisition of a property right as a result of creative labour (natural law argument) and enhance authors’ freedom of expression by offering a source… Read more

A New Copyright Bargain? Reclaiming Lost Culture and Getting Authors Paid

Published Oct 2, 2018

Abstract Copyright’s fundamental structure is based on outdated assumptions, including that marginal costs of copying and distribution are high, and registration systems necessarily onerous and expensive.1  International treaties embedded these assumptions into domestic laws worldwide, and for good reasons:  when the Berne Convention prohibited formalities in 1908, it was a necessary response to compulsory registration… Read more

The International Framework for the Protection of Authors: Bendable Boundaries and Immovable Obstacles

Published Oct 2, 2018

Abstract This Article is concerned with the international framework within which authors’ rights in their works are protected and exploited.  It is not about brave new worlds that might exist outside or beyond this framework where rights and usages are reconceived and restructured on some totally new basis, but instead with what that framework presently… Read more

Dr. Strange Geo-Blocking Love Or: How The E.U. Learned To Stop Worrying About Cultural Integration And Love The TV Trade Barrier

Published Mar 17, 2018

Abstract The E.U. Antitrust Case that opened on July 23, 2015 against Sky U.K. and six American studios—Disney, Fox, NBCUniversal, Paramount Pictures, Sony and Warner Brothers—has its structural roots in the Television Without Frontiers Directive, which was vigorously debated as a last-minute standoff that threatened to derail the conclusion of the GATT Uruguay Round of trade negotiations and is… Read more

Liability for Providing Hyperlinks to Copyright-Infringing Content: International and Comparative Law Perspectives

Published Mar 17, 2018

Abstract Hyperlinking, at once an essential means of navigating the Internet, but also a frequent means to enable infringement of copyright, challenges courts to articulate the legal norms that underpin domestic and international copyright law, in order to ensure effective enforcement of exclusive rights on the one hand, while preserving open communication on the Internet on the other. Several… Read more

Adjusting The Dress Code: Implementing Trade Dress Reform to Burgeon User Experience (UX) Protections

Published Dec 5, 2017

Abstract This article addresses the fundamental gaps in intellectual property protections plaguing the User Experience (UX). UX is the field of focus on user interactivity with interface displays. Numerous mobile and computer applications—including Facebook, Snapchat, and Uber—blatantly engage in the copying of one another’s UX, with de minimis legal repercussion. An exception within trade dress, the sua sponte “UX Exception,”… Read more

Artificial Intelligence’s Fair Use Crisis

Published Dec 5, 2017

Abstract As automation supplants more forms of labor, creative expression still seems like a distinctly human enterprise. This may someday change: by ingesting works of authorship as “training data,” computer programs can teach themselves to write natural prose, compose music, and generate movies. Machine learning is an artificial intelligence (“AI”) technology with immense potential and a commensurate appetite for copyrighted… Read more

Blockchains, Orphan Works, and the Public Domain

Published Dec 5, 2017

Abstract This Article outlines a blockchain based system to solve the orphan works problem. Orphan works are works still ostensibly protected by copyright for which an author cannot be found. Orphan works represent a significant problem for the efficient dissemination of knowledge, since users cannot license the works, and as a result may choose not to use them. Our… Read more

None of Your Business: Protecting the Right to Write Anonymous Business Reviews Online

Published Jun 28, 2017

Abstract This Note analyzes the fine balance between First Amendment protection afforded to anonymous online business reviews and the state’s interest in removing false communications made about a business or business owner. Part I traces the development of anonymity as a protected First Amendment right and will also explain the rise of Internet speech and… Read more

Evidence? We Don’t Need No Stinkin’ Evidence!: How Ambiguity in Some States’ Anti-SLAPP Laws Threatens to DeFang a Popular and Powerful Weapon Against Frivolous Litigation

Published Jun 28, 2017

Abstract For nearly thirty years, states have been adopting laws that attempt to stop rich, sophisticated parties from using costly litigation as a weapon to punish and silence their less-affluent critics. Known as “anti-SLAPP” statutes, these measures have been incredibly effective in forcing certain plaintiffs to bring forth evidence at an early stage of litigation… Read more

Authors’ Human Rights and Copyright Policy

Published Jun 28, 2017

Abstract Few would likely disagree with the observation made by Graeme Dinwoodie in this journal some seventeen years ago that “[i]t is increasingly impossible to analyze intellectual property law and policy without reference to international lawmaking.” International instruments influence the shape of domestic intellectual property law, and, in turn, have become vehicles for exporting domestic… Read more

Session III: Issues Concerning Enforcement and Dispute Resolution

Published May 7, 2017

These remarks are a transcript of a talk that was given on October 14, 2016, at the Kernochan Center Annual Symposium at Columbia Law School. Session III addressed the strategies for achieving compliance with international copyright treaties and trade agreements. Session Panelists:  Sean Flynn, Associate Director for Program on Information Justice and Intellectual Property, American University… Read more

Session III: Enforcement Tools in the U.S. Government Toolbox to Support Countries’ Compliance with Copyright Obligations

Published May 7, 2017

These remarks are a transcript of a talk that was given on October 14, 2016, at the Kernochan Center Annual Symposium at Columbia Law School. Session III addressed the strategies for achieving compliance with international copyright treaties and trade agreements. Session Panelists:  Sean Flynn, Associate Director for Program on Information Justice and Intellectual Property, American University… Read more

Session III: Issues Concerning Enforcement and Dispute Resolution

Published May 7, 2017

These remarks are a transcript of a talk that was given on October 14, 2016, at the Kernochan Center Annual Symposium at Columbia Law School. Session III addressed the strategies for achieving compliance with international copyright treaties and trade agreements. Session Panelists:  Sean Flynn, Associate Director for Program on Information Justice and Intellectual Property, American University… Read more

Session I: Keynote Panel, Describing the Legal Landscape

Published May 7, 2017

These remarks are a transcript of a talk that was given on October 14, 2016, at the Kernochan Center Annual Symposium at Columbia Law School. Session I, the Keynote Panel of the Symposium, addressed the legal landscape of copyright treatises and free trade agreements, including the role of FTAs and their benefits and disadvantages, and… Read more

Session I: Keynote Panel, Describing the Legal Landscape

Published May 7, 2017

These remarks are a transcript of a talk that was given on October 14, 2016, at the Kernochan Center Annual Symposium at Columbia Law School. Session I, the Keynote Panel of the Symposium, addressed the legal landscape of copyright treatises and free trade agreements, including the role of FTAs and their benefits and disadvantages, and… Read more

Session II: Rigidity in Global Intellectual Property Norms

Published May 7, 2017

These remarks are a transcript of a talk that was given on October 14, 2016, at the Kernochan Center Annual Symposium at Columbia Law School. Session II addressed how international copyright treaties and FTAs affect national IP laws in the U.S. and elsewhere. Session Panelists: Krista Cox, Director of Public Policy Initiatives, Association of Research Libraries… Read more