Copyrightable Subject Matter Research Articles

Explotación de obras derivadas de las Expresiones Culturales Tradicionales Indígenas, a través de un modelo de Licencia-para-Lectura en la Plataforma de Libros Digitales. Un aspecto bajo la Ley de Derechos de Autor de Taiwán

Taiwan hereda las tradiciones culturales de diversos pueblos indígenas que han habitado aquí durante miles de años. Para aprovechar las ventajas tales culturales, el gobierno de Taiwán ha puesto en marcha varios proyectos de investigación para recoger las expresiones culturales tradicionales indígenas (ECT) creados por los taiwaneses nativos. Como se han formado muchas bases de datos, es muy importante la creación de más algunos modelos de negocio para agregar valor económico a las bases de datos. Este artículo proporciona un modelo. Es decir, usar los libros digitales con una "licencia para leer" contrato. Un "libro digital" puede trabajar con una forma de protección de software para evitar usos no autorizados, deliberada infracción de derechos de autor, o difusión de contenido no deseado. Este artículo comienza con un análisis de copyrightability de ECT en la Parte II. Parte III se analizan las ideas de los libros digitales como una manera de explotar y proteger las expresiones culturales tradicionales, al mismo tiempo, y también analiza el marco jurídico de protección de los derechos de autor de los libros digitales en virtud de la Ley de Propiedad Intelectual de Taiwán. Por último, la Parte VI ofrece un plan de proyecto sobre cómo implementar la idea. En pocas palabras, la idea de usar los libros digitales se basa en la tendencia de algunos productos electrónicos comerciales, tales como iPad de Apple, teléfonos inteligentes o tabletas. Estos productos crean una plataforma de contenidos digitales. Los clientes pueden leer el contenido digital a través de iPad de Apple, por ejemplo. Es muy conveniente para hacerlo, mientras que los clientes se sientan en cualquier lugar. En cuanto a la protección del derecho de autor, las ECT no puede ser un objeto de protección, ya que las piezas artísticas de las ECT podrían haber estado en el dominio público. Sin embargo, mediante el uso de un formato de libro digital, las ECT puede ser transformado en un nuevo tema de derechos de autor. Por otra parte, mediante una tecnología de software y la ley de derechos de autor de los anti-elusión, los propietarios de derechos de autor de los libros digitales pueden evitar que sus propiedades de libre difusión a través de Internet. Por ejemplo, un archivo de libro digital podría ser incrustado con un código. El código puede ser leído por un determinado software que se instala en esas plataformas digitales. Así, los clientes sólo pueden acceder a los libros digitales con derechos de autor. Además, el formato digital puede agregar algunas características interactivas en las ECT que no se pueden ejecutar en un formato de papel. Tales características podrían ser más atractivos para los clientes. El beneficio del producto inhibe una mayor difusión física de los libros digitales impresos. En conclusión, para explotar mejor las obras de las expresiones culturales tradicionales indígenas, los libros digitales podrían ser una mejor manera en términos de protección de los derechos de autor.

Public Art and Copyright Law: How the Public Nature of Architecture Changes Copyright Protection

The creation of tangible copies from a work of art that is publicly displayed had always been a rare practice, until some recent cases attracted huge media attention. Zaha Hadid’s Wangjing Soho being pirated in Chongqing and the Chinese copy of the UNESCO-protected Austrian town of Halstatt have officially marked the entrance into the age of repeatability for architecture. This article reads this message through the lens of copyright law and introduces the category of “public art” as copyright subject matter. In particular, it examines the underpinning of private and public interests and suggests that, as public art is born to be displayed in public spaces and to “exist” in a single copy, the author–owner–society relationship becomes exceptionally puzzling. It is this last relationship that modifies how architecture is protected under copyright law and how, therein, the balance between private and public interest is struck.

Subject matter of copyright protection in the UK: a road map to effectuating statutory reform

The statutory framework governing the protection afforded various copyright subject matter in the UK, despite the predictability afforded by its closed list, has come under intense criticism over the last decade or so, with many scholars citing the need for urgent reform. Indeed, given the adverse range of responses in this regard, the question arises as to whether the UK should move towards a system that more closely resembles that of other Commonwealth Countries, such as Canada and Trinidad and Tobago, where a non-exhaustive or open list of protected works is provided for.

The Transformation of Originality in the Progressive-Era Debate over Copyright in News

In the 1991 case of Feist Publications, Inc. v. Rural Telephone Service Co., Inc., the Supreme Court held unanimously that only those aspects of works which exhibited a modicum of creativity could be protected by copyright, and hence that factual matter was not copyrightable. Feist confirmed and expanded on the Court's statements in the 1918 case of International News Service v. Associated Press that news was not copyrightable apart from its literary form. Yet for the first three-quarters of the nineteenth century, the notion that copyright incorporated an originality requirement which excluded factual matter from protection was unknown to Anglo-American law. Courts routinely found infringement of fact-based works, such as maps, charts, road-books, directories, and calendars, on the basis of the copying of their factual content, and concluded that the industry of plaintiffs in gathering and presenting facts should be protected under copyright law. What caused the transformation in the doctrine of originality between the Civil War and World War I? This article argues that the rise of creativity-based originality in copyright law has strong ties to a previously little-examined episode in copyright history: the debate over legal protection for news in the last decades of the nineteenth century. Until the 1880s, the American news industry remained in a pre-copyright era, and played no part in copyright discourse. Newspaper editors followed a widespread custom of freely copying text from other newspapers. That custom was acknowledged and encouraged by a massive government subsidy in the form of free postage for newspaper copies that were being exchanged between editors. Newspaper owners never registered their papers before publication, and thus forsook copyright protection for them. In the middle decades of 1800s, however, technological changes, foremost among them the introduction of the telegraph, radically changed the structure of the news industry. The telegraph provided newspapers with an opportunity to invest in more timely news; yet together with improvements in typesetting, printing, and transportation technology, it also created an appropriability problem. It shrank the lead-time advantage that newspapers traditionally had relied upon to realize the value of their investment in news, and also exposed them to competition from which they had previously been geographically isolated. At the same time, the new communications technologies led to the emergence of companies and large associations that dominated markets, often with the aid of anticompetitive practices. Prominent among these were the news industry organizations of the Associated Press and the Western Union. Within this context, the Associated Press, Western Union and others began in the 1880s to press for legal protection of news reports, in both legislative and judicial arenas. Opposition to those efforts led to the first prominent articulations of the notion that facts are not created by authors, and are therefore not copyrightable subject matter. Paradoxically, that notion was then reinforced by proponents of legal protection for news, when they resolved to seek that protection outside of statutory copyright, in common law misappropriation, and made the tactical decision to argue that news was not copyrightable in order to avoid copyright preemption of their common law claims. An earlier, shorter version of this article will appear in a collection of essays published by Edward Elgar Publishing, Inc.

No Bitin' Allowed: A Hip-Hop Copying Paradigm for All of Us

“I’m a writer not a biter, for myself and others. I say a B.I.G. verse, I’m only biggin’ up my brother.” - Jay Z Copyright law in the United States may be at one of its periodic inflection points. In the past, major technological change and major shifts in the way that copyrightable works were used have led to major changes in the law, from the invention of the printing press prompting the first codification of copyright, to the popularity of the player piano contributing to a reevaluation of how musical works should be protected, to the dawn of the computer age leading to an explicit expansion of copyrightable subject matter to include computer programs (to name but a few examples). Today, owners of copyright face a world where digital technology has made it easy and cheap to reproduce, adapt, distribute, display or perform the works of another. Equally important, a generation of users has grown up expecting to be able to freely usurp the traditional exclusive rights of the copyright owner. If the declining sales and audiences in the music, newspaper and broadcast television industries tell us anything, it is that old legal paradigms regarding copying, and the business models built around them, are in jeopardy. With what do we replace the old approach to copying? The short answer is: something less like a rigid, blanket ban on copying of expression and something more like a flexible approach that distinguishes acceptable, or even laudable, imitation of another’s expression from undesirable copying. Scholars have explored norms-based alternatives to intellectual property law in policing copying in various creative and innovative communities, such as chefs, comedians, research scientists, jambands, and magicians. The community of hip-hop artists employs a norms-based approach to imitation as well. The types of copying, and the consequences of each type, are varied and nuanced. The cultural consequences of imitating in the “wrong” way are such that the formal legal consequences of copying are irrelevant within the community. Even though hip-hop music has become popular music and popular music is largely owned commercially and protected with copyright law, instances of one hip-hop artist (not record company) suing another over copying are exceedingly rare. This paper will explore the lessons that the Copyright Act can learn from Jay-Z and his brethren.

Writing Rights: Copyright’s Visual Bias and African American Music

Copyright was first applied to words and was initially visual in orientation. Since the earliest copyright laws, copyright subject matter has progressively expanded from granting rights to protect written expression to other artistic arenas. Copyright law has, however, consistently undervalued the art of performance while favoring the written expression of music, which has had a profound impact on African American based musical forms, now a dominant basis for popular music. This paper examines the privilege of sight in copyright and the numerous ways in which copyright law systematically disfavors performance and suggests two possible explanations. First, copyright law seems to exhibit a visual bias toward perceptible music notation such as written sheet music, which superficially resembles books, maps, and charts, the first objects of U.S. copyright protection. Second, the successful movement beginning in the nineteenth century to ‘sacralize’ older music forms and freeze in place canonical classical works has contributed to visual-textual bias and reinforced an existing privilege of sight. Sacralization involved the identification of original written texts that could serve as ‘authentic’ works, a process that came at the expense of alternative performance practices. Visual bias and sacralization have disadvantaged creative practices based in performance, particularly in light of fixation requirement under current U.S. copyright law. This emphasis on writings has disfavored some plaintiffs who have sought greater protection for their own performance practice, while at the same time disfavored some defendants whose creative, non-notated performance practice should allow a greater scope for their borrowing. Copyright’s visual-textual bias thus diminishes important contributions of performers of music and hinders recognition of the full spectrum of activities that may be embedded in sound recordings. This article suggests that courts in interpreting infringement in music cases must look beyond the visual and take better account of how music is actually perceived, applying insights of neuroscience research on music cognition. Contexts of creation should play a greater role in copyright infringement determinations, which should take a more holistic approach to music and other arts that incorporates both visual and nonvisual elements and greater understanding of varied assumptions about musical perception for copyright determinations.

Creativity and Copyright: U.S. and Indian Perspective

Creativity is a very important aspect of copyright, copyright promotes creativity. Modern copyright law is based upon a theory that increase more copyright protection creativity will increase by itself. This theory has been the driving force behind an economic vision that has expanded, beyond all recognition, the original law created by the Statute of Anne. In every copyrighted material there is presence of some creativeness. If the state provides protection to the authors on their creative works then they will be encouraged and the society will also be encouraged to work more creatively. The changing social context, such as the application of new media and communication technologies, new production of knowledge, and especially the democratization of creativity, has brought about continuing challenges to this regulatory framework. The greater the protection, the greater the reward; the greater the reward, the greater the incentive to create new works; and the greater the incentive to create new works, the greater the number of new works created. According to Macaulay, by increasing the financial bounty available to authors, we ultimately increase the public’s bounty of new works of authorship. In other words, copyright law promotes creativity.The moot question is that what should be the amount of creativity in a material to be copyrighted. Many US Supreme Court cases have established the tests and delivered their judgments in order to examine the amount of creativity that is sufficient for copyright protection. There are many creative materials but they are not copyrighted, although they contain creativity because they may be against morality or not under the subject matter of copyright. All these questions can only be understood by referring to the decided cases on this issue. One needs to refer to the legislation and the case laws together to understand the intent of the legislators. In some cases the courts have made creativity criteria very strict for the protection and in some cases they are moderate. The author in this article has tried to show the shift that has been made by judiciary from sweat of the brow to modicum of creativity.

A Study on the Legal Protection of Fashion Design: Comparison between Korea and the United States

The global fashion industry produces a huge variety of creative goods to market. The fashion industry profits by developing creative content as in the music, film, video game, and book industries. However, unlike those industries, the fashion industry’s principal creative production lies outside the domain of intellectual property law. Fashion has not been historically protected by copyright law due to differences in the legal treatment of the fine arts, like literature, music, and art, which are accorded copyright protection, and crafts, which are generally not accorded such protection. Although fashion is meant to be functional (i.e., it must fit the human body and keep it warm and dry), it is also artistic and creative. Most would agree that fashion is rarely a fine art because it also fulfills a utilitarian function, but this should not necessarily preclude designers from being able to protect their investment in truly innovative designs, as artists and musicians are able to do. The law has traditionally treated each field of IP as an instance of discrete and mutually exclusive protection. Patents protect innovation in terms of functional design, while copyrights protect artistic expression. Finally, trademarks protect goodwill and reputation. These firm divisions between patentable and copyrightable subject matter have left the creative designers of utilitarian objects such as clothing without protection. The growth of the fashion industry has spawned an increased public awareness about fashionable designer products. In light of the popularity of certain designers or specific designs, design piracy has increased exponentially. Design piracy is the copying of a designer’s original designs, thereby enjoying the benefit of his/her artistic work at no expense. Copyists can thus free ride on the efforts of designers, thereby discouraging future investments in creative fashion design. Design piracy is not new; however, while it once took several years for a fashion to descend the price line into low-priced production, this progression is now nearly immediate. Technological advances have made it possible for design pirates to obtain another creator’s designs and manufacture duplicates overnight. Because of the pervasiveness of design piracy, the practice of copying is now considered commonplace in the fashion industry. Accordingly, the original designers of iconic fashion pieces stand to lose substantial amounts of revenue after expending the capital necessary to create them. This study compares Korea and the United States to understand the implications of Korea’s fashion design protections. This paper describes the research on fashion design protection practices in both countries, analyzes the present situation state of fashion design protection in these countries, and compares their legal principles related to fashion design protection. To this end, a literature review is presented that draws on relevant studies and national statistical data on both countries. First, the research on Korea and U.S. fashion design piracy can be summarized as follows. For fashion design in Korea, previous studies focus on the current status of counterfeit fashion goods, intellectual property protection in the fashion market and the protection of applied arts including fashion design. However, these studies have some limitations; many lack specific, concrete discussion on the current status of intellectual property and protection methods, instead providing general, comprehensive discussions. In contrast, studies in the U.S. context focus on the present situation of counterfeit goods in the fashion market, the nature of the fashion market, the essential features of design piracy and the legal protection of fashion design under the Design Piracy Prohibition Act. The breadth of studies on U.S. design piracy studies is much wider compared to those on Korea. In particular, as bills regarding the protection of design under copyright law such as DPPA or IDPPA are submitted to Congress, studies on the protection of design under legal laws are actively conducted. Fashion design protection in Korea versus the United States and the relevant legal principles can be summarized as follows. There are similarities and differences in the protection of fashion design across both countries. First, both countries are similar in terms of fashion design protection under patent law. Both countries provide some protection for fashion design under copyright law. Fashion design still lacks the criteria that have been established for literary works, but criteria are being developed to facilitate the protection of fashion design under copyright law. The most significant difference between the two countries regarding the protection of fashion design lies in the political efforts undertaken to protect fashion design. Unlike Korea, the United States has continued to enforce a separate law for the practical protection of fashion design to address two problems: first, the screening process generally takes a long time, which hinders the protection of fashion, and second, it is difficult to protect the middle area of design rights.

Efficiency Analysis of the Law and Order of the GPL

The open source model, initially spawned by anti-proprietary ideology, was adopted by the software industry as a viable alternative to proprietary software. Along with the open source paradigm, commercial firms also adopted the GPL, a restrictive license that manifested the core objectives of the Free Software Foundation (FSF). Ostensibly, even if a license is not optimal, the contribution of this understanding remains at the theoretical level, as commercial firms are free to choose any licensing structure they wish, including licenses that are not socially optimal. However, the special nature of copyright law, coupled with the major role of the FSF in the open source arena in general and specifically in the enforcement of the GPL, significantly transforms the picture. The FSF, almost akin to a legislator, has both the tools and the public standing to implement changes if the GPL were not to be socially optimal and if another approach could alleviate its inefficiencies and still be consonant with maintaining the underlying goals of the GPL. This dissertation offers a comprehensive methodology that provides a deep understanding of the open source model and copyleft licenses under the current copyright law. I analyze the GPL from four different perspectives: incentive, information costs, enforcement and access to knowledge. For each angle, the analysis first explores both the strengths and the weaknesses of the copyleft license, then examines the implications, and lastly explores whether the market mechanisms support the evolvement of efficient solutions. The dissertation suggests that the GPL, along with other open source licenses, has an important role to play in the current intellectual property regime - a role that is effectively executed by commercial firms that have warmly adopted the open source model. However, both the GPL and BSD licenses fail to maximize the benefits of the open source paradigm where it could best manifest its superiority over the proprietary regime: in the area of intangible 'foundation products‘, i.e., goods that do not have a discrete value in of themselves and whose value is in subsequent goods. To this purpose, neither the GPL nor the BSD license is optimal. To maximize the superiority of open source software where it is most needed, I outline specific principles for a more efficient licensing structure. The analysis also suggests that the inefficiencies of the copyleft regime evinced when applied to the software industry could be frivolous when used with other copyright subject matter.

Why Typefaces Proliferate Without Copyright Protection

Classic economic theory predicts that without copyright protection authors and publishers would not have sufficient incentive to invest the time or money needed to produce or distribute new works, and the public would suffer a shortage. Copyrights are an attempt to solve this problem. By granting a monopoly to the author of an expressive work the government gives him the sole right to copy it. If only the author has this right, authors will get a reasonable rate of return, and thus a sufficient incentive to create new works. However, empirical evidence on whether adequate expressive works would be created without copyright protection is hard to come by. This is a little disturbing. Copyrights, being monopolies, come with significant economic and social costs. Too-broad copyright protection often works, paradoxically, to stifle innovation. Where is the evidence going to come from? Almost everything that could be copyrightable subject matter has been made to be. However, there are some industries that do not receive strong intellectual property protection yet manage to be innovative, generating many new expressive works. Not very many industries operating in intellectual property law’s open areas have been written about despite the seeming importance of identifying and cataloging them. This paper adds to that list by analyzing the mechanisms that allow typeface designs to proliferate despite being unprotected by copyright. These mechanisms include technological forces, industry norms, fashion-like cycles, and the practice of bundling computer fonts with software. Technology compels innovation when new designs are made to compensate for the limitations of newly introduced technology. At the same time, the digitization of type design has made typefaces easier and cheaper to produce while allowing features, not previously feasible, the market comes to demand. Norms within the type design industry are effective at mitigating plagiarism within it. Even when norms fail, typefaces, especially those that require the most time and investment to design, are resistant to plagiarism. Furthermore, while typefaces as computer fonts are subject to file-sharing, more damaging to prices is the practice of designing and bundling computer fonts with operating systems and other software to enhance their appeal. Typefaces are also subject to the vagaries of artistic movements and fashion-like cycles. As tastes change, which they do rather quickly, new typefaces have to be made to comport with the new aesthetic. Advertising and the advertising industry is an important cog in this process, helping to speed the fashion-cycle. Together, these mechanisms work to yield a large number of typeface designs. This challenges, at least in some instances, the orthodox justification for granting copyrights.

Patenting Games: Or, Baker v. Selden Revisited

Games and gaming have increasingly been the subject of patents. This paper examines how the patenting of games and gaming affects the play and use of games. The author suggests that there needs to be some limit on the scope of patenting so that patent rights do not interfere with the rights of gamers and users. The Article proposes limits on gaming patents under the recent Bilski decision and under the Supreme Court precedent of Baker v. Selden. While the latter case has applications largely to copyright subject matter, the author explores the implications of the Supreme Court's famous decision for patentable subject matter.

Copyright Issues Relating to Customized Software

The purpose of this paper is to study in detail the copyright issues relating to customized software, and to analyze the different laws relating to this area. The various copyright laws allover the world provide that the copyright in a work is initially owned by the author of the work. This is a simple enough statement of law, but it frequently presents significant problems when individuals and companies assume that they understand who the 'author' is and under what circumstances commissioning a work results in copyright ownership vesting in someone other than the author. This problem particularly manifests itself in the world of customized software creations. This essay tries to find answers to some very pertinent questions in this area. Firstly, it analyzes the viability of excluding customized software from the ‘work for hire’ doctrine. The software industry is unique, and deserves unique treatment under the doctrine. Computer software differs notably from other copyrightable subject matter. Much of the value of software comes from its utilitarian rather than its aesthetic aspects. Secondly, it inquires into the practicability of the commissioning parties being recognized as ‘joint authors.’ Joint authorship should not be predicated on the contribution of an 'abstract' idea acted upon by another. Conversely, an idea that has been developed in sufficient detail in effect dictates the ultimate expression, making the idea giver the sole author. Between these two rare extremes, the significance of the commissioner’s contribution of ideas depends on the quantity and quality of those ideas as embodied in his instructions to the contractor. Thirdly, it studies whether the source code should be mandatorily provided to the customer under the End User License Agreement. As per the current practice, usually, the software developers, as part of the End User License Agreement, provide only the object code to the customer, and not the source code. Source code control is especially important for customized software programs. Analyzing all these issues in great detail, the author comes to the conclusion that the copyright laws relating to customized software are heavily loaded in favour of the software developer, and need significant changes.

Copyleft Licensing and EC Competition Law

The growing popularity of open source software has ignited numerous legal studies on open source licenses. Most of them have focused on copyright and patent law. This article adds to the literature by studying open source licenses from EC competition law perspective. The question is, what competition law issues are relevant when open source products enter particular software markets. One can think of two kinds of anti-competition arguments: (1) those presented by proprietary companies against the licensing terms of open source products and (2) those presented by open source companies against the licensing terms of proprietary products. First, one can argue that several open source licenses - most notably GNU General Public License (GPL) used in Linux and other popular open source products - restrict competition in the software industry through price-fixing and grant back requirements. Some could even argue that open source licenses illegally extend beyond the subject matter of copyright law. These licenses have a reciprocal requirement - commonly called as copyleft - to grant back all development improvements to other market participants royalty-free. In effect, such requirements can erode the possibilities of any open source licensee - including proprietary companies - to offer other than royalty-free products. Second, one can construct arguments against the license terms of proprietary products. If dominating proprietary companies refuse to license a standard necessary for interoperability with compatible terms, they can create entry-barriers to open source products. Since open source licenses with copyleft clause require that no one can charge royalties for the use of open source products, royalty requirements based on use - may they be reasonable and non-discriminatory - effectively restricts competition from open source companies. This article proceeds as follows. First, the article presents the controversial copyleft clause used in many open source licenses. Then, the article discusses whether copyleft could be read as an anti-competitive price-fixing or grant back clause and whether copyleft illegally goes out of the scope of copyright's subject matter in the light of EC competition law. Further, the article discusses whether refusal to license dominating proprietary standards with fair terms could be held anti-competitive when copylefted products can't enter the markets and whether compulsory royalty-free licenses could be imposed in this kind of situations. Finally, implications to legal policy are discussed.

Method and Madness in Copyright Law

Black letter copyright law holds that methods and processes, as well as facts and ideas, are excluded from the subject matter of copyright. This doctrine extends back at least to the iconic Supreme Court decision in Baker v. Selden. But recent copyright cases have protected as copyrightable subject matter compilations of numerical values that are the products of calculation processes, such that protection of the final results seems tantamount to protection of the underlying process. These cases not only tread the line between fact and original expression, but underscore the difficulty of separating process from product in copyright. A careful examination of these decisions uncovers powerful but questionable philosophical assumptions embedded in copyright jurisprudence, and reveals hidden lacunae within the copyright statute that call into question the continuity and viability of current copyright doctrine.

U.S. Copyright Law: English - Chinese Cases and Materials

These bilingual teaching materials were developed for the segment on U.S. copyright law of Prof. Wang's graduate copyright class at the School of Intellectual Property, East China University of Politics & Law, Shanghai in spring 2005. The materials also proved helpful for lectures at ECUPL's suburban campus in Song Jian, and at the suburban campus of Southwest University of Politics & Law, Chongqing. All materials were presented in English and in Chinese translation, alternating paragraphs, rather than facing pages in order to improve classroom display screen by screen. Statutory provisions were presented in English-Chinese-pinyin format. Our mini-course on U.S. copyright law followed a conventional structure: constitutional foundations and U.S. Code excerpts (definitions, subject matter of copyright, U.S. Government works, exclusive rights, authorial rights of attribution and integrity, fair use, ownership, transfer, duration, infringement, and remedies), principles exemplified by classic cases. Our case selection focused on the idea-expression dichotomy, the creative expression requirement, and fair use. We wanted to convey the utilitarian rationale of U.S. copyright law, and constitutional limits on author's rights. We sought to distinguish the U.S. approach from the European view founded on an author's natural rights. Our objectives led us to use Baker v. Selden, Feist v. Rural Telephone, Sony v. Universal City Studios, and Campbell v. Acuff-Rose. MGM v. Grokster, recently argued and decision pending, lent topicality to the Sony Betamax case. Campbell v. Acuff-Rose gave us both a concrete example of the constitutional limits on exclusive rights and a vehicle to highlight the creative expression requirement. Both Roy Orbison's Pretty Woman (well-known in China), and 2 Live Crew's rap parody were available in MP3 format. That enabled us to play the songs while displaying bilingual versions of the lyrics, as we analyzed the concepts of fair use and creative expression by the parodists. (An image of 'Cousin It' helped illustrate the gap between the rap version and the Big O?'s syrupy ballad - linked in Chinese minds to Julia Roberts.) The Chinese-pinyin-English version of the selections from Title 17 of the U.S. Code (and similar presentation of some key phrases in the cases) helped make Professor Conk's lectures more accessible to the students. The pinyin helped to ameliorate his weak character recognition skills, and the Hanzi version helped listeners overcome his American accent and his erratic tones. Our bilingual teaching method thus began with visually-aided presentations by Professor Conk, whose English was interspersed with Chinese phrases, and illustrated by both the English and the Chinese text of the material under discussion. Professor Wang thus was able to follow with explication and commentary, rather than literal translation or paraphrase.

Rewrite Copyright: Protecting Creativity and Social Utility in the Digital Age

Debate about the impact of modern technology on copyright law has become polarized—even harsh. Owners, with some justification, contend that copying has become too easy and that strong protections for their assets must be implemented in order to insure the continued production of creative work. Users respond, with some justification, that such strong protections place intolerable constraints on their rights to browse in digital space, of contemporary culture and fairly use copyright works. The form of the debate—with both sides raising valid problems and neither finding an easy solution inside the existing structure of copyright law—suggests a need to rewrite copyright to insure remuneration to copyright owners while still providing easy, cheap access for users.The most viable method for achieving such a goal is to institute a wide ranging system of levies on all devices and media that make it possible to quickly and easily copy protected copyright subject matter. In return for the payment of levies, owners would be required to allow users undisturbed access to their copyrighted works. This paper uses the sometimes checkered history of American copyright law as a vehicle for discussion of the problems technology presents to contemporary intellectual property law, the need for a levy system, the most significant requirements of a levy system and the nature of objections likely to arise to use of such a system.

Impediments to the Used Consumer Software Business

Computer software is a huge, worldwide industry, one in which the United States has become the dominant force. The maturation of the software industry has led to dramatic productivity gains, permitting businesses and individuals to accomplish more work with less effort. The industry's growth has depended, and will continue to depend, in large part on the ability of software producers to prevent broad, unauthorized use of their products. Well-developed markets exist for used copies of copyrightable subject matter such as books, musical recordings, and movies. Yet there is no organized market for used computer software, even though it can be, and often is, copyrighted. This paper explores the various legal and operational challenges that entrepreneurs would encounter in launching a used consumer software business. Part I of this paper describes various aspects of the U.S. software industry, including the history of the legal protection of software intellectual property, to provide background for the rest of the paper. Although several methods of legal protection are available for software, this paper focuses primarily on copyright. Part II examines markets for used copyrighted works in general. Part III analyzes the legal challenges a used software business would face, and Part IV examines business challenges including possible responses by software producers to a successful used software business. Substantial impediments to entering the used software market would make it a risky business venture, particularly if done in a manner that does not honor software producers' license agreements. Even if such a business were to litigate successfully the complex and unsettled legal issues, any substantial market success would likely provoke reactions from software producers that could thwart the business and hamper its growth prospects. Entrepreneurs must evaluate each of these obstacles carefully before investing in starting such a business.

An overview of the Australian import regime for copyright material

Under Australian copyright law prior to 1991, copyright owners generally had the exclusive right to import copyright material for commercial purposes. Accordingly, permission was usually required from Australian copyright holders before copyright material such as films, software and books could be imported for sale in Australia. Over the past decade, however, the Australian government has progressively eased these restrictions for the main purposes of stimulating competition in particular markets or ensuring consumer access to certain goods. One of the main changes to the Copyright Act has been to permit, in certain circumstances, “parallel importation” which is the legal importation of non-pirated copyright subject matter for commercial use without the permission of the Australian copyright holder. Because legislative change has come in stages, the current import regime is an amalgam of different rules for different products. Importers accordingly need to be careful that they are aware of the different rules and seek permission where required. This article sets out a brief guide to the Australian copyright import regime for a range of common product groups.

Judicial Review and the Quest to Keep Copyright Pure

This paper is a discussion of the Supreme Court's decision in Eldred v. Ashcroft. In the paper, I argue that the ambiguity at issue in Eldred has little to do with the meaning of the words of the Copyright Clause, but rather raises questions of how aggressive the judiciary should be in policing Congress's exercise of the copyright power. After exploring the justifications offered for heightened judicial scrutiny in a variety of constitutional contexts, I conclude that exercise of the copyright power implicates none of them. Courts should correspondingly review intellectual property laws for consistency with the Copyright Clause using the most deferential standard of review conceivable, a standard that I distinguish in both form and context from the sort of heightened rational basis review we've grown accustomed to seeing in case like Lopez and Morrison. Among the most serious flaws in arguments for heightened judicial scrutiny of copyright laws is that they rest on the assertion that courts should impose upon congress a particular definition of progress as that term is used in the Copyright Clause. Such attempts are misguided for two reasons: First, they seek to replace political copyright policymaking with judicial policymaking. But such attempts are inconsistent with the Constitution's preference for representative policymaking, and the Supreme Court's decision to constitutionalize the exclusion of fact from copyrightable subject matter in Feist Publications, Inc. v. Rural Telephone Co. provides a more than adequate reminder that (in addition to its lack of democratic pedigree) the court's copyright policymaking is also substantively lacking. Second, they call upon eighteenth-century copyright policy as understood by the Framers to provide this frozen definition of progress. But the Framers never considered most of the copyright-related questions we face today, and even if they had, it's not clear that we would want to live with the policy choices they would have made. Political, not judicial, action is the solution for our copyright woes.

Fair price and public goods: a theory of value applied to retransmission

This article offers a framework of analysis for determining what, as a matter of economics, might be generally said to constitute a fair price or “equitable remuneration” for the retransmission of copyright subject matter. This general conception may tested by its application to solve the particularly difficult issue of local area retransmission; retransmission by a third party of a broadcast in an area which original broadcaster intended the broadcast to reach. In developing an analytical framework, the article draws upon contingent valuation methodologies, the added value paradigm and suggested rational behavior in information good markets. The article also explores broader notions of copyright as an excludable public good, and its amenability to private supply. This permits certain conclusions to be arrived at regarding payment for retransmission and economic efficiency.