The Junior Scholars in Intellectual Property (JSIP) Workshop offers an opportunity for junior scholars* writing in the areas of intellectual property, communications, and cyberlaw to receive commentary from established scholars in a focused workshop setting. Articles will be chosen prior to JSIP through a blind-review selection process. Accepted articles will receive detailed feedback from at least two commentators as well as from workshop participants. Participants are expected to attend for the full duration of the workshop.

Applicant-scholars should submit papers online below by February 4, 2011.

* Eligible junior scholars have seven or less years full-time teaching experience.

For more information please contact Sean Pager at 517-432-6972 or spager[at]law.msu.edu

Intellectual Property Colloquium

A new audio program is ready for listening at www.ipcolloquium.com.  The title and description are included below.  As always, sincere thanks to our several partners: the UCLA School of Law; the economic consultancy Compass Lexecon; the computer technology company Microsoft; and the Kauffman Foundation.

Title: A Conversation with Chief Judge Randall Rader

Guest: Honorable Randall R. Rader (Chief Judge of the US Court of Appeals for the Federal Circuit).

Description: In this edition of the IP Colloquium, the Honorable Randall R. Rader, Chief Judge of the Federal Circuit, joins us to discuss a wide range of legal and policy issues related to the nation’s patent system. The conversation is a frank and open discussion, with exchanges about (among other things) the need for Federal Circuit judges to experience district court proceedings in order to meaningfully evaluate them, and the possibility that independent creation is in fact evidence of patent obviousness. UCLA Law Professor Doug Lichtman hosts.

The Berkman Center for Internet & Society at Harvard University is now accepting applications for fellowships for the 2011-2012 academic year.

We are currently accepting applications through two distinct channels:

* 1) We are accepting applications for a specific fellowship opportunity: our academic fellowship for rising early-to-mid career academics.
* 2) We are accepting applications for fellowships through our annual open call.

The academic fellowship is intended for a rising scholar who will use the period of the fellowship to develop his/her teaching and research career and produce compelling, potentially paradigm-shifting contributions to our understanding of cyberspace. It is a stipended fellowship and residency in Cambridge, MA is required. The deadline for applications for the academic fellowship is 11:59 p.m. ET on November 15, 2010.

I was working under the mistaken assumption, I think, that the framers of the Constitution were either exceptional for their time and that the other lawyers from the period were decidedly less skilled.

Check out the drafting in this early Connecticut public law that, according to Noah Webster, “was obtained by the petition of several literary gentlemen in that state.” See, Noah Webster, Origin of the Copy-Right Laws in the United States, A collection of papers on political, literary, and moral subjects 173 (1843). The law’s policy is interesting, especially the provision on judicially mandated access when a publisher does not make enough copies available or charges too high a price. But the thing that really gets me is the elegant drafting:

Connecticut Act for the encouragement of literature and genius 1783 Jan Sess CONNECTICUT

AN ACT for the encouragement of literature and genius.

1783, Jan. Sess. Whereas it is perfectly agreeable to the principles of natural equity and justice, that every author should be secured in receiving the profits that may arise from the sale of his works, and such security may encourage men of learning and genius to publish their writings; which may do honor to their country, and service to mankind.

Be it enacted by the governor, council and representatives, in general court assembled, and by the authority of the same, That the author of any book or pamphlet not yet printed, or of any map or chart, being an inhabitant or resident in these United States, and his heirs and assigns, shall have the sole liberty of printing, publishing and vending the same within this State, for the term of fourteen years, to commence from the day of its first publication in this State. And if any person or persons within the said term of fourteen years as aforesaid, shall presume to print or re-print any such book, pamphlet, map or chart within this State, or to import or introduce into this State for sale, any copies thereof, re-printed beyond the limits of this State, or shall knowingly publish, vend and utter, or distribute the same without the consent of the proprietor thereof in writing, signed in the presence of two credible witnesses, every such person or persons shall forfeit and pay to the proprietor of such book, pamphlet, map or chart double the value of all the copies thereof, so printed, imported, distributed, vended, or exposed for sale; to be recovered by such proprietor in any court of law in this State, proper to try the same.

Provided nevertheless, That no author, assignee or proprietor of any such book, pamphlet, map or chart shall be entitled to take the benefit of this statute, until he shall duly register his name as author, assignee, or proprietor, with the title thereof, in the office of the Secretary of this State, who is hereby impowered and directed to enter the same on record.

And be it further enacted by the authority aforesaid, That at the expiration of the said term of fourteen years, in the cases above mentioned, the sole right of printing and disposing of any such book, pamphlet, map or chart in this State, shall return to the author thereof, if then living, and his heirs and assigns, for the term of fourteen years more, to commence at the end of said first term; and that all and every person or persons who shall re-print, import, vend, utter or distribute in this State, any copies thereof without the consent of such proprietor, obtained as aforesaid, during said second term of fourteen years, shall be liable to the same penalties, recoverable in the same manner as is herein before enacted and provided.

And whereas it is equally necessary, for the encouragement of learning, that the inhabitants of this State be furnished with useful books, &c., at reasonable prices:

Be it further enacted, That whenever any such author or proprietor of such book, pamphlet, map or chart, shall neglect to furnish the public with sufficient editions thereof, or shall sell the same at a price unreasonable, and beyond what may be adjudged a sufficient compensation for his labour, time, expence, and risque of sale, the judge of the superior court in this State, on complaint thereof made to him in writing, is hereby authorized and impowered to summon such author or proprietor to appear before the next superior court, to be holden in that county where such author or proprietor dwells, if a resident in this State, if not, in that county where such complainant dwells; and said court are hereby authorized and impowered to enquire into the justice of said complaint, and if the same be found true, to take such sufficient recognizance and security of such author or proprietor, conditioned that he shall within such reasonable time, as said court shall direct, publish and offer for sale in this State, a sufficient number of copies of such book, pamphlet, map, or chart, at such reasonable price as said court shall, on due consideration affix: And if such author or proprietor shall, before said court, neglect or refuse to give such security as aforesaid, the said court are hereby authorized and impowered to give such complainant, a full and ample licence to re-print and publish such book, pamphlet, map or chart, in such numbers and for such term as said court shall judge just and reasonable: Provided said complainant shall give sufficient security before said court, to afford said reprinted edition at such reasonable price as said court shall thereto affix.

And be it further enacted, That any person or persons who shall procure and print any unpublished manuscript, without the consent and approbation of the author or proprietor thereof, first had and obtained, (if such author or proprietor be living, and resident in, or inhabitant of these United States) shall be liable to suffer and pay to the said author or proprietor his just damages for such injury; to be recovered by action brought on this statute, in any court of law in this State, proper to try the same.

Provided always, That nothing in this act shall extend to affect, prejudice or confirm the rights which any person may have to the printing or publishing of any book, pamphlet, map or chart, at common law, in cases not mentioned in this act, or to screen from legal punishment any person or persons who may be guilty of printing or publishing any book, pamphlet or paper that may be prophane, treasonable, defamatory, or injurious to government, morals or religion.

Provided also, That this act shall not extend, or be construed to extend in favour, or for the benefit of any author or persons residing in, or inhabitant of any other of the United States, until the State or States, in which such person or persons reside or dwell, shall have passed similar laws in favour of the authors of new publications, and their heirs and assigns.

(Note.—This act was repealed by the act, Chapter IX, October Session, 1812 of the general assembly of State of Connecticut, “Public State Laws of the State of Connecticut, Book II, October Session, 1812,” p. 104.)

As some of you may know, Marybeth Peters, Register of Copyrights at the U.S. Copyright Office, will be retiring from her position in December after serving as Register since 1994.  She has been involved with the Copyright Office since 1983, and is world renowned and respected for her dedication to and work in the field of copyright. Marybeth plans to continue to be active in the field after she formally leaves the Copyright Office.

I would like to have the Winter issue of the EASL Journal be a tribute to her by collecting and publishing comments, memories and thoughts from attorneys who worked with Marybeth during her tremendous tenure.

The idea/expression dichotomy, which holds that copyright protection extends only to expression, but not to ideas, is internationally recognized as a basic principle of copyright law. Yet despite the doctrine’s fundamental importance, China has not codified it in its general copyright statute. This legislative failure threatens to undermine the public-oriented goals of copyright and presents a dilemma to Chinese courts, which are not authorized to make or develop doctrine through recognition of judicial precedent.

This Article provides the first in-depth study in English of the idea/expression dichotomy in Chinese copyright law. It demonstrates that, even though the doctrine is not codified, it is widely acknowledged among Chinese academics and regularly applied in Chinese courts. The doctrine has faced linguistic, cultural, and conceptual challenges in China, and early court decisions left much to be desired. Nonetheless, an analysis of recent judicial opinions reveals that modern courts understand the idea/expression dichotomy and apply it in a reasonably coherent and defensible manner. Their exposition of the doctrine is largely, although not entirely, consistent with its underlying purpose of promoting free speech and safeguarding the public domain.

The courts’ relative success in filling this statutory hole suggests that Chinese judges play an underappreciated, but crucial, lawmaking function. This finding in turn raises intriguing questions as to the authority and function of China’s judicial system generally.

This is the story of Tonson v. Baker, the first copyright suit brought under the Statute of Anne in 1710. Filed in the Court of Chancery three months after the statute went into effect, the case pitted the most famous publisher of the day against a gang of notorious book pirates. The case was never reported, but it has now been pieced together using over 100 manuscript records marshaled mainly from archives in London, England, and from hundreds of other primary sources. After recounting the suit and the circumstances surrounding it, this Article uses Tonson v. Baker as a launching pad to demonstrate how copyright history can remain doctrinally relevant today. The subject of my critique is the Supreme Court’s decision in Feltner v. Columbia Pictures Television, Inc., which concerned the constitutional right to a jury trial for statutory damages under the Copyright Act of 1976. The Article closes by providing transcriptions of the manuscript court documents from Tonson.

The U.N. Declaration on the Rights of Indigenous Peoples requires states to provide an effective remedy to indigenous peoples deprived of their cultural, religious, or intellectual property (IP) without their free, prior and informed consent. The Declaration could prove to be important safeguard for the indigenous peoples of Iraq and Turkey, the victims for centuries of massacres, assaults on their religious and cultural sites, theft and deterioration of their lands and cultural objects, and forced assimilation. These peoples, among them the Armenians, Assyrians, Greeks, and Yezidis of Turkey and Turkish-occupied Cyprus, and the Armenians, Assyrians, Yezidis, and Mandaeans of Iraq, have lost more than two-thirds of their peak populations, most of their cultural and religious sites, and thousands of priceless artifacts and specimens of visual art.

The European Union has probed these violations of indigenous people’s rights as part of the process of bringing Turkish laws and policies into compliance with European human rights standards. The United States has investigated violations of the rights of Iraq’s indigenous peoples in reports issued by the various executive agencies and legislative committees.

My paper will summarize the results of these inquiries, and propose four reforms. First, restitution or compensation should be implemented for the widespread destruction of indigenous peoples’ cultural and intellectual properties by previous Turkish and Iraqi regimes. Second, efforts to promote the security of indigenous peoples’ surviving intellectual and cultural patrimony must be adopted. Third, transnational corporations and other large enterprises such as museums and publishers should respect the rights of indigenous people to protect, access, and use their cultural and intellectual property held outside of Turkey and Iraq. Fourth, policies within Turkey and Iraq that restrict the preservation and transmission of indigenous cultural and intellectual manifestations must be reformed or abolished.

The first is from Boston College Law Review:

Boston College Law Review, Issue 50:5 (November 2009)
Publicity, Privacy, and Intellectual Property Meet the First Amendment

Forward

Mary-Rose Papandrea, Where Intellectual Property and Free Speech Collide, 50 B.C. L. Rev. 1307 (2009) [PDF]

Symposium Articles

Lauren Gelman, Privacy, Free Speech, and “Blurry-Edged” Social Networks, 50 B.C. L. Rev. 1315 (2009) [PDF]

Roberta Rosenthal Kwall, A Perspective on Human Dignity, the First Amendment, and the Right of Publicity, 50 B.C. L. Rev. 1345 (2009) [PDF]

Lyrissa Barnett Lidsky, Anonymity in Cyberspace: What Can We Learn from John Doe?, 50 B.C. L. Rev. 1373 (2009) [PDF]

David S. Olson, First Amendment Interests and Copyright Accommodations, 50 B.C. L. Rev. 1393 (2009) [PDF]

Elizabeth A. Rowe, Trade Secret Litigation and Free Speech: Is It Time to Restrain the Plaintiffs?, 50 B.C. L. Rev. 1425 (2009) [PDF]

Rebecca Tushnet, Fighting Freestyle: The First Amendment, Fairness, and Corporate Reputation, 50 B.C. L. Rev. 1457 (2009) [PDF]

Alfred C. Yen, A First Amendment Perspective on the Construction of Third-Party Copyright Liability, 50 B.C. L. Rev. 1481 (2009) [PDF]

Diane Leenheer Zimmerman, Money as a Thumb on the Constitutional Scale: Weighing Speech Against Publicity Rights, 50 B.C. L. Rev. 1503 (2009) [PDF]

Notes

Igor Helman, Spam-A-Lot: The States’ Crusade Against Unsolicited Email in Light of the CAN-SPAM Act and the Overbreadth Doctrine, 50 B.C. L. Rev. 1525 (2009) [PDF]

Harriet A. Hoder, Supervising Cyberspace: A Simple Threshold for Public School Jurisdiction over Students’ Online Activities, 50 B.C. L. Rev. 1563 (2009) [PDF]

Leigh Tinmouth, The Fairness of a Fair Trial: Not Guilty Pleas and the Right to Effective Assistance of Counsel, 50 B.C. L. Rev. 1607 (2009) [PDF

The second, from William and Mary Law Review:

William and Mary Law Review, Issue 51:2 (November 2009)

Boundaries of Intellectual Property Symposium

Trotter Hardy, Introduction

Dan L. Burk and Brett H. McDonnell, Trademarks and the Boundaries of the Firm

Jason Mazzone, Administering Fair Use

Pamela Samuelson and Tara Wheatland, Statutory Damages in Copyright Law: A Remedy in Need of Reform

Rebecca Tushnet, Economies of Desire: Fair Use and Marketplace Assumptions

Jane Winn and Nicolas Jondet, A New Deal for End Users? Lessons from a French Innovation in the Regulation of Interoperability

Margo A. Bagley, The New Invention Creation Activity Boundary in Patent Law

John F. Duffy, Rules and Standards on the Forefront of Patentability

Mark A. Lemley, Distinguishing Lost Profits from Reasonable Royalties

Michael J. Meurer, Patent Examination Priorities

Graeme B. Dimwoodie, Developing a Private International Intellectual Property Law: The Demise of Territoriality?

Brett Frischmann, Spillovers Theory and its Conceptual Boundaries

Laura A. Heymann, How to Write a Life: Some Thoughts on Fixaiton and the Copyright/Privacy Divide

Mark P. McKenna, An Alternate Approach to Channeling?

Online Response

Steven Hetcher, A Response to Rebecca Tushnet’s Economies of Desire

What counts as a “good reason”? In addition to our two examples, take a look at what has been declared fair use by courts or legislatures. They include:

• Quotations of reasonable length
• Parody (but not satire)
• Use in news reporting
• Time-shifting (recording TV for later viewing)
• Thumbnailing (resizing) for image search engines
• Reverse-engineering for a new operating platform (figuring out what you need to do to write a game that works on a Sony Playstation)
• Limited copying for classroom or educational use

Wu proceeds to pin down why so many copyright pundits are fascinated by the Associated Press-Shepard Fairey copyright dispute, at least before the recent revelations about the assertions in Fairey’s complaint: It presents a new category that has yet to be evaluated:

Shepard Fairey’s case, setting aside his recent troubles for a moment, is one of these new areas. To “Warholize” someone else’s photo (if that’s the right verb) doesn’t fall within an existing category of fair use. So the question is whether it should.

Wu ends by explaining why the four factors Judge Story used in Folsom v. March, now embodied in law in 17 U.S.C. 107, often seem to play a marginal role when courts evaluate fair use today, outside of the context and era of the opinion:

Oddly enough—and, to my mind, for no particularly good reason—other thoughts of Story’s from 1841 on fair use remain the law. In Story’s time, the Supreme Court heard a copyright dispute over an abridgment of a long biography of George Washington. Story wrote “we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.” .  .  .

Is the [Hope image] fair use? Odds are, Story’s general principles didn’t answer the question for you. More probably, you have a gut reaction of some kind, which is, of course, how judging generally works—as Justice Oliver Wendell Holmes once put it, judges decide first and write their reasons later.