Copyrightable Subject Matter in the "Next Great Copyright Act"

Artificial intelligence offers promising applications for content production. However, their development faces significant copyright issues because it involves reproduction of protected subject matter and requires datasets so large that obtaining licences from all rightholders is unfeasible. These issues potentially hinder technological development and content production. On the other hand, some AI applications can threaten the interests and incentives of those who create works and subject matter that are protected by related rights. This article examines whether EU copyright and antitrust law are capable of addressing these challenges. It identifies possibilities and obstacles in applying exceptions for text and data mining (TDM) and temporary copying to the development of artificial creativity (AC) applications. The article also examines mechanisms by which EU antitrust law facilitates access to copyright-protected training materials and licences – an important complement to the copyright exceptions. While copyright and antitrust law enable the development of AC in certain situations, their tools are limited to particular types of AI applications, certain categories of subject matter and specific market conditions, and are subject to requirements concerning the development process as well as considerable legal uncertainty. Copyright and antitrust law also remain largely toothless against contractual and technological restraints, while recent EU initiatives dealing with data access also provide little relief in this regard.

A developmental study of children's preferences for paintings

The purpose of this study was to compile a listing of theses and dissertations completed in home economics in colleges and universities in the United States during 1985. The 885 titles received from 73 institutions are listed by subject matter and degree; and the author, institution, and availability of the document are reported. Information about graduate research in home economics is summa rized through presentations of totals for each institution, by subject matter cate gories, and through rankings for the institutions reporting the largest numbers of theses and dissertations. Of all the titles, 26 percent were for dissertations. The largest number of titles was reported in nutrition, and family relations ranked second. In comparison to the titles reported in 1983 and 1984, the percentage of dissertations was similar (25% vs. 26%) and the subject matter areas with the largest numbers of titles were the same.

Copyright C 2001 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. t J.D. Candidate, School of Law, University of California, Berkeley (Boalt Hall), 2001; B.A., University of California, Berkeley, 1995. I would like to thank Jesse Choper, Earl Warren Professor of Public Law, School of Law, University of California, Berkeley (Boalt Hall) for his insightful comments and valuable revisions, Marina Hsieh, Assistant Professor of Law at the University of Maryland, for her inspiration and encouragement, and Alan Brownstein, Professor of Law at the University of California at Davis, for introducing me to the wonders of constitutional law. In addition, I thank the editors and staff of the California Law Review for their valuable comments and suggested improvements to this Case Note. For encouraging me through all of my endeavors, I thank my parents, Dave and Lisa. Above all, I thank my wife, Staci, without whose love, encouragement, and support this Case Note, and indeed my journey through law school, would not have been possible. 1. 3 WILLIAM BLACKSTONE, COMMENTARIES *23. 2. 527 U.S. 706 (1999).

A sample of 240 college students was shown color slides of fifty paintings and asked to rate each on a Likert scale as to perceived attractiveness. Ten different categories of subject matter were presented, and each category was shown in five different degrees of realism ranging from highly realistic to abstract. An analysis of variance showed highly significant effects for subject matter. degree of realism and their interaction. The results are seen as being contrary to what would be expected from a “relativist” position with respect to art but consistent with that expected from a “universalist” position.

The purpose of this study was to compile a listing of the theses and dissertations completed in home economics in colleges and universities in the United States during 1986. The 747 titles received from 68 institutions are listed by subject matter area and degree; and the author, institution, and availability of the docu ment are reported. Information about graduate research in home economics is summarized through presentations of totals for each institution, by subject matter categories, and through rankings for the institutions reporting the largest numbers of theses and dissertations. Of all the titles, 30 percent were for disser tations. The largest number of titles was reported in nutrition; family relations ranked second. In comparison to the titles reported from 1982 through 1985, the percentage of dissertations has increased (from 23% to 30%) and the subject matter areas with the largest numbers of titles remained the same.

The purpose of this study was to examine the effect that large withinexaminee item difficulty variability had on estimates of the proportion of consistent classification of examinees into mastery categories over two test administrations. The classification consistency estimate was based on a single test administration from an estimation procedure suggested by Subkoviak (1976). Analyses of both actual and simulated data revealed that the use of a single, overall-item difficulty estimate for an examinee's true-score, even when item difficulty varied greatly within an examinee, did not influence the estimation of the proportion of consistent classifications any more than homogeneous difficulty situations. Effects of Item Difficulty Heterogeneity on the Estimation of True-Score and Classification Consistency Methods of estimating the consistency of classification into two or more categories over two testing occasions but using information gained from only a single test administration have been proposed (Huynh, 1976; Marshall & Haertel, 1975; Subkoviak, 1976). All of these methods of estimating classification consistency (CC) were originally conceived to be used on criterionor domainreferenced tests which were tests of fairly short length (i.e., 30 items or less) consisting of items assumed to measure somewhat narrowly defined content areas. The latter assumption is frequently thought to carry with it an assumption of approximate equal item difficulties or item exchangeability1* throughout the test for a given examinee. In fact all of the previously cited methods of estimating CC require this assumption. However, tests which are not constructed to these specifications can still be used to classify individuals into categories. The ACT Proficiency Examination Program (ACT PEP) tests are of this type. These exams are de­ signed to measure subject matter proficiency attained primarily outside of the classroom in on-the-job situations, such as nursing career experiences. Exams of this type cover a number of subject matter categories that are related more by job performance criteria than similarity of content. Because of the diversity of content included, the tests also report results on more homogeneous subcategories of items. The ACT PEP test called Fundamentals of Nursing is a typical representative of such proficiency tests. It consists of item sets from six subject matter categories ranging in length from only 8 items to 52 items with the average length around 20 items. The test specifi­ cations require that the items within a category item set fall under the broad content heading but the items within a set are not thought of as exchangeable,

Clouds are on the horizon for software copyrights. The open source movement is actively trying to turn copyright into “copyleft.” Courts around the world are reshaping the first sale doctrine, notably the European Court of Justice in UsedSoft v. Oracle not to mention the United States Court of Appeals for the Ninth Circuit in Autodesk v. Vernor. Software manufacturers are fleeing from distribution models toward service models—into the cloud. A perfect storm for software copyrights is brewing. The cloud promises to enable software publishers to place their code outside both the framework of copyright exhaustion under the first sale doctrine and the “distribution trigger” in open source code license terms. Users’ inability, in the cloud context, to directly access the underlying software threatens to exert various side effects, notably affecting software interoperability. New kids on the block lose the ability to reverse engineer hosted software. Established platform providers gain the ability to prevent interoperability, based on laws prohibiting interference with computers and technical protection measures. These developments risk upsetting the delicate balance between exclusive rights for copyright owners and access privileges for the public—a balance that courts and legislatures have carefully established over the years—in order to foster creativity and innovation. With unprecedented pressure on traditional distribution models, how will copyright law cope? In our Article, we attempt to illuminate the immediate path ahead, discuss possible answers, and pose more questions. © 2015 Lothar Determann and David Nimmer. Opinions expressed herein reflect only the authors’ views, and should not be imputed to their universities, firms, clients, or others. † Lothar Determann teaches computer, internet, and data privacy law at Freie Universitat Berlin; University of California, Berkeley, School of Law; and Hastings College of the Law, San Francisco and practices technology law as a partner with Baker & McKenzie LLP, admitted in California and Germany. †† David Nimmer teaches domestic and international copyright at the UCLA School of Law and as a guest at various other institutions. He has represented a wide array of clients in copyright matters at Irell & Manella LLP. 162 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 30:1

The paradigmatic roles of copyright and patent laws have been, respectively, to protect original authorial expressions from illicit copying and novel and nonobvious functional designs (if they have been appropriately claimed and examined by patent officials) from illicit uses. It would be convenient if copyright law could be assigned the role of protecting the expression in computer programs and patent law the role of protecting program functionality. While courts continue to try to distinguish between program expression and program functionality, this distinction has proven elusive in the decades since the U.S. Congress decided to extend copyright protection to computer programs.For more than twenty years, a series of court cases have held that copyright infringement does not occur when a second comer needs to copy some aspects of another firm’s program in order to achieve compatibility with other programs. Courts have deemed the functional requirements for achieving compatibility to be unprotectable elements of these copyrighted programs, even though more than a modicum of creativity may have imparted originality to these elements.The seeming consensus that program interfaces necessary for interoperability are unprotectable by copyright law was recently called into question by the Court of Appeals for the Federal Circuit (CAFC) in Oracle Am., Inc. v. Google Inc. At issue was whether the command structure of certain elements of the Java application program interface (API) was protectable by copyright law. The CAFC reversed a lower court ruling that this command structure was an unprotectable method of operation, or alternatively that copyright protection was unavailable under the merger doctrine. The CAFC was untroubled by the prospect that software developers might obtain both patent and copyright protection for APIs of computer programs. There was, in its view, no need to sort out functionality and expression in computer programs. Copyright could protect both as long as there was a modicum of creativity to support the claim of copyright. The Oracle decision has rekindled a decades-old debate, which many had thought had been settled in the late 1990s, about the proper scope of copyright protection for computer programs and how courts should go about analyzing claims of software copyright infringement. The U.S. Supreme Court decision not to review the Oracle decision leaves the CAFC ruling intact for the time being.This Article takes issue with the CAFC’s ruling and analysis. It aims to provide guidance about how courts should assess claims of copyright infringement in computer program cases. Part II reviews some key software copyright decisions and explains why the Second Circuit’s test for software copyright infringement is more compatible with traditional principles of copyright law than the Third Circuit’s is-there-any-other-way-to-do-it test. The Second Circuit recognized that sometimes external factors, such as the need to be compatible with other programs, constrain the design decisions of subsequent programmers, and when this happens, those constraints limit the scope of copyright protection in programs. While there is much in the Second Circuit’s ruling to praise, that court failed to heed the statutory directive in 17 U.S.C. § 102(b) that procedures, processes, systems, and methods of operation should also be filtered out before making judgments on copyright infringement claims in software cases. Part III articulates five propositions about § 102(b) that should be uncontroversial. It explains the important role that § 102(b) has played in numerous computer program cases. It goes on to discuss numerous respects in which the CAFC in Oracle misinterpreted § 102(b), as well as numerous cases in which courts have held that aspects of programs that are necessary for achieving interoperability with other programs or hardware are too functional to be protected by copyrights. Part IV explains why the merger doctrine has an important role to play in the assessment of infringement claims involving computer programs and why the CAFC erred in its interpretation of this doctrine. Courts should explicitly recognize a merger of function and expression doctrine in computer program cases. This doctrine usefully complements analysis of elements that may be unprotectable under § 102(b) as necessary incidents to the reimplementation of an unprotectable method or process.Part V considers the roles that copyright and patent law should play in protecting program innovations, with particular attention to how courts should assess claims that copyright protection should be unavailable to aspects of programs that might be eligible for patent protection. The CAFC in Oracle conflated copyright and utility patent protections for software as though it was unnecessary to even try to distinguish program expression and functionality. Part VI offers a pragmatic approach to distinguishing between program functionality and expression in copyright cases and a refinement of the Second Circuit’s test for software copyright infringement that is consistent with the overwhelming majority of software copyright cases (even if not with the CAFC’s Oracle decision) and traditional principles of copyright law. Competition and ongoing innovation will better thrive when the scope of copyright protection is relatively thin, allowing programmers to reuse functional design elements and know how that will promote the progress of science and useful arts, as the Constitution directs.

Although the U.S. Patent and Trademark Office (PTO) has granted patents on genes for over 20 years, the prudence of gene patenting continues to stir controversy. Some have questioned the ethics of monopolizing a resource that is so fundamental and basic to all living organisms. It has also been argued that patents unfairly restrict the use of genes, impeding both basic and commercial research. For the biotechnology industry, however, gene patents are the currency it uses to protect its investment in research and development, and eventually, the products it brings to market. This paper examines the eligibility of genes for patenting, and considers whether the policy reasons that have led courts to decide that certain categories of subject matter are unpatentable, apply to the realm of genes. Even if this were the case, this does not mean that biotech companies have no way of protecting their inventions. Methods and processes of using the genes do not invoke the same policy considerations, and may provide a more appropriate way of rewarding industry for the narrow discovery of a gene's specific use.

Some Foundations of the Dairy Industry

In the years since the U.S. Supreme Court gave public school administrators nearly absolute control of school-sponsored student publications (Hazelwood, 1988), supporters of the student press in 29 states have tried to convince their politicians to protect student expression by state statute (Arkansas Makes Six, 1995).(1) Efforts have been successful in Arkansas, Colorado, Iowa, Kansas, and Massachusetts, which increased to six the number of states having some form of statutory protection for student expression in school-sponsored publications. Prior to 1988, only California had included such protection in its Education Code. Shortly after the Hazelwood decision, one educator called upon university schools and departments to help the Third Press to secure laws forbidding (Knight, 1988, p. 47), while others decried the kind of censorship allowed under the Court's new guidelines (Garneau, 1988; Hentoff, 1988; Hazelwood: Experts React, 1988). Additionally, there emerged a new focus on research that could be related to successful campaigns for student publications legislation. The most helpful research has specifically tapped two areas: how principals, scholastic press association directors, journalism advisers, and students view various aspects of student publications; and what strategies are successful in securing political support for legislation. Very few scholarly studies or popular media articles have addressed the ways these two types of information may be synthesized to produce positive results, but such a synthesis was successful in the battle to gain student publications legislation in Arkansas (Plopper, 1995). With a failure rate of 83 percent in the 28 other states where efforts have been made to pass student press legislation since 1988, it may be time to reconsider the tactics being used by proponents of such legislation. By synthesizing views of the student press and information about successful political strategy, this study proposes a model for passing student press legislation. It also suggests that journalism and mass communication faculty take a major role in implementing the model. The student press In mid-1988, Click and Kopenhaver reported a nationwide study of high school principals and publications advisers that showed both groups, by overwhelming percentages, favored prior review of student publications (p. 50). Dickson (1989) reported that 98.6 percent of the Missouri principals he surveyed expected journalism advisers to talk to them if the advisers had any questions about the appropriateness of material scheduled for publication, and he documented several categories of subject matter that principals thought they would suppress in a student publication, if they found it objectionable (p. 171). Dvorak, Lain, and Dickson (1994), citing Dickson's previously unpublished 1990 nationwide study of high school newspaper advisers, reported that the kind of newspaper content causing the most conflict was that which was considered to be fair or balanced (p. 290). Click, Kopenhaver, and Hatcher (1993) surveyed principals and journalism advisers nationwide, asking about their attitudes toward student press freedom. They found that the two groups differed significantly in their attitudes toward factors relating to student newspapers (p. 69) and suggested, Advisers may be well advised to work with their principals to narrow this gap (p. 69). Olson, Van Ommeren, and Rossow (1993) asked the nation's scholastic press association directors about their attitudes toward the student press and found high agreement with the statement, High school journalism advisers should review all copy before it is printed (p. 11). They also concluded, Concerning press rights, the directors believe that high school journalists should be granted First Amendment protection coupled with a strong commitment, as one director puts it, to 'teaching, not supervision, advising, not control' (p. …

Designing An Optimal Intellectual Property System for Plants: A U.S. Supreme Court Debate

The article presents preliminary interdisciplinary criteria for understanding the subject field of art in the interaction between anthropology and art studies. It is important to highlight the methodological approach adopted in the comprehensive analysis of artistic content in relation to different geographical regions. It is crucial that scholars from diverse scientific disciplines engage in the theoretical comprehension of the Russian cultural field. The authors posit that the distinctive and particular content of the anthropology of art resides in the circumstances of culture, which may be understood in three dimensions: sacral/ethno-national-religious, socio-organisational, and nature-production. These dimensions may be conceived as parts of the “matrix of being,” which is essential for scientific comprehension of the object and subjects of the discussed scientific direction. There is currently no agreed scientific or practical substantiation for the anthropological nature of art in its ethnic understanding. The systematic classification of factors of production, social and religious modes of life within the cultural context of diverse peoples, in conjunction with historical periodization, enables the introduction of a typological dimension that is characteristic of ethnic art. Accordingly, the anthropological/ethnocultural aspect of art should be examined in the context of the causal relations between the material and spiritual purpose of the ‘thing’ (human-function-form). It is important to engage in interdisciplinary dialogue on this topic, but it is essential to reach a consensus on the categories of subject matter and the conditions for their formulation.

This book is a guide to the first large letter collection that survives from the Greco‐Roman world. The correspondence of Cicero consists of nearly 950 letters and embraces almost every major political figure of the Late Republic. Chapters 1 through 3 of this study describe external constraints affecting the letters that have come down to us. Some were the result of Roman conventions regarding social interaction, while others reflect logistical difficulties of long‐distance communication. Another series of constraints on the way letters were written arose from generic expectations about epistolary form. In addition, an editor helped to shape the published collection by imposing criteria of selection and arrangement that favored certain categories of subject matter and correspondent over others. Chapters 4 through 6 turn from the context of the letters to their content, and discuss three of Cicero's most characteristic epistolary preoccupations. It shows how, in a time of deepening crisis, he and his correspondents drew on a common literary background, on the habit of exchanging advice, and on a rhetoric of leadership in an effort to improve cooperation and to maintain the political culture which they shared.