Irene Calboli Research Articles

Neil Wilkof, Shamnad Basheer and Irene Calboli (eds): Overlapping Intellectual Property Rights

Neil Wilkof, Shamnad Basheer and Irene Calboli (eds): Overlapping Intellectual Property Rights

Book review: Irene Calboli and Ng-Loy Wee Loon (eds), Geographical Indications at the Crossroads of Trade, Development and Culture: Focus on Asia-Pacific (Cambridge University Press 2017), 570 pp.

Book review: Irene Calboli and Ng-Loy Wee Loon (eds), Geographical Indications at the Crossroads of Trade, Development and Culture: Focus on Asia-Pacific (Cambridge University Press 2017), 570 pp.

Fair Use For Free, or Permitted-but-Paid?

The U.S. Supreme Court in Sony Corporation of America v. Universal City Studios fended a fork in the fair use road. The Court there upset the longstanding expectation that uses would rarely, if ever, be fair when the whole of a work was copied. In the aftermath of that decision, lower courts have rendered a plethora of decisions deeming the copying of an entire work (even with no additional authorship contribution) a fair use, and therefore “free” in both senses of the word. A perceived social benefit or some market failure appears to motivate these decisions. This is because fair use is an on/off switch: either the challenged use is an infringement of copyright or it is a fair use, which section 107 declares “is not an infringement of copyright.” As a result, either the copyright owner can stop the use, or the user not only is dispensed from obtaining permission, but also owes no compensation for the use. I contend that fair use for free should be available only where a second author copies in the creation of a new work (instances which I will call productive uses). By contrast, when the entire work is copied for essentially distributive purposes, courts and legislatures should sometimes allow the use, but subject it to an obligation to compensate authors and rights holders. This is not a radical idea: the United States is in fact an outlier in the broader international landscape of copyright exceptions. Many countries have permittedbut-paid regimes for various uses, including those by libraries, educational institutions, and technologies. Indeed, the United States has some as well, particularly respecting new technological modes of dissemination. For many authors and other members of the creative communities, while their works stoke the engines of others’ enterprises, the Internet age has proffered more rags than riches. Creators should be compensated for the non-creative reuse of their works. © 2014 Jane C. Ginsburg. † Morton L. Janklow Professor of Literary and Artistic Property Law, Columbia Law School. Many thanks for research assistance to Trey Brewer, Arjun Jaikumar, and Olena Ripnick, all Columbia Law School class of 2014. Thanks also for observations and criticisms to June Besek, Jack Browning, Irene Calboli, David Carson, Jacqueline Charlesworth, Susy Frankel, Wendy J. Gordon, Brad Greenberg, Lital Helman, Bert Lazerow, Yafit Lev-Aretz, Jessica Litman, Tony Reese, Pamela Samuelson, Paul Spera, Eva Subotnik, and Edouard Treppoz, and to Shyamkrishna Balganesh, Christopher Yoo, and the participants in the University of Pennsylvania copyright colloquium; to Jennifer Rothman and Jay Dougherty and the participants in the Loyola Law School faculty workshop, and to my colleagues at the Columbia Law School faculty workshop. Much gratitude to Barton Beebe for sharing his database of fair use cases. This article benefited from the support of the Philippe P. Dauman Faculty Research Fund. 1384 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 29:1383

Irene Calboli and Wee Loon Ng-Loy (eds.): Geographical Indications at the Crossroads of Trade, Development, and Culture

Irene Calboli and Wee Loon Ng-Loy (eds.): Geographical Indications at the Crossroads of Trade, Development, and Culture

Book review: Irene Calboli and Edward Lee (eds), Research Handbook on Intellectual Property Exhaustion and Parallel Imports (Edward Elgar 2016) 584 pp.

"Book review: Irene Calboli and Edward Lee (eds), Research Handbook on Intellectual Property Exhaustion and Parallel Imports (Edward Elgar 2016) 584 pp." published on Feb 2018 by Edward Elgar Publishing Ltd.

Book Review: Diversity in Intellectual Property: Identities, Interests, and Intersections

Book Review of 'Diversity in Intellectual Property', edited by Irene Calboli and Srividhya Ragavan

Book review: Irene Calboli and Jacques de Werra (eds), The Law and Practice of Trademark Transactions: A Global and Local Outlook (Edward Elgar, 2016) 617 pp.

"Book review: Irene Calboli and Jacques de Werra (eds), The Law and Practice of Trademark Transactions: A Global and Local Outlook (Edward Elgar, 2016) 617 pp." published on Sep 2017 by Edward Elgar Publishing Ltd.

Exhaust this!

Jerome Reichman correctly notes in his foreword to the book that there is still no international consensus concerning a uniform policy justification for the principle of exhaustion, nor is there any consensus about uniform rules to be adopted either for exhaustion in general or even for specific application of this doctrine to patents, trademarks, copyrights, and related intellectual property regimes (p. xv). The Research Handbook edited by Irene Calboli and Edward Lee serves as an excellent source for such a generalized, and at the same time detailed, approach in understanding and analysing the doctrine of exhaustion from a global perspective. The reviewer—based on his own experience in this field—can confirm the editors’ statement, according to which ‘no academic collection or book has systematically addressed the various issues related to this topic to date, including the various theories at the basis of the principle of exhaustion and parallel imports’ (p. xix.). Certainly, hundreds of academic papers, book chapters and monographs have touched on the topic. Most often, however, these papers have discussed the issue solely from one (or only a few) perspective(s), depending on the jurisdiction (mainly the USA or Europe), the field of law (copyright or industrial property) or the period of publication (generally pre- and post-digital era) under consideration. The editors of this volume, and all the contributors, thus deserve high praise for their efforts to create a concise, comparative, interdisciplinary (focusing both on law and economics) and multi-functional handbook that provides guidance both for practitioners and theorists.

Irene Calboli and Srividhya Ragavan (eds.): Diversity in Intellectual Property – Identities, Interests, and Intersections

The terms diversity and intellectual property are rarely seen together. This unique book brings together a number of leading authors to discuss a range of topics relating to diversity and intellectual property. Since it is uncommon to see these topics linked as they have been here, it may not be immediately apparent to potential readers what they can expect from this collection or why they should read it. This terrific volume, edited by Irene Calboli and Sri Ragavan, contains essays that are both informative and thought provoking. This book will serve as an excellent resource for intellectual property scholars, policy makers and practitioners. As the first book to address intellectual property and diversity, this book is a significant contribution to the literature. This edited collection highlights the intersectionality of the different aspects of diversity in intellectual property. Calboli and Ragavan have started an important conversation about diversity in global intellectual property law. Hopefully, this timely conversation will continue.

Book Review: Irene Calboli and Srividhya Ragavan (Eds.) Diversity in Intellectual Property Identities, Interests, and Intersections

The terms diversity and intellectual property are rarely seen together. This unique book brings together a number of leading authors to discuss a range of topics relating to diversity and intellectual property. Since it is uncommon to see these topics linked as they have been here, it may not be immediately apparent to potential readers what they can expect from this collection or why they should read it. This terrific volume, edited by Irene Calboli and Sri Ragavan, contains essays that are both informative and thought provoking. This book will serve as an excellent resource for intellectual property scholars, policy makers and practitioners. As the first book to address intellectual property and diversity, this book is a significant contribution to the literature. This edited collection highlights the intersectionality of the different aspects of diversity in intellectual property. Calboli and Ragavan have started an important conversation about diversity in global intellectual property law. Hopefully, this timely conversation will continue.

Book review: Intellectual property: between conceptual diversity and traditional harmony Irene Calboli and Srividhya Ragavan (eds), Diversity in Intellectual Property: Identities, Interests, and Intersections (Cambridge University Press, 2015) 562 pp

Book review: Intellectual property: between conceptual diversity and traditional harmony Irene Calboli and Srividhya Ragavan (eds), Diversity in Intellectual Property: Identities, Interests, and Intersections (Cambridge University Press, 2015) 562 pp

Irene Calboli and Edward Lee (eds.): Trademark Protection and Territoriality Challenges in a Global Economy

In the eighth and latest volume of the ‘‘Elgar Intellectual Property and Global Development Series,’’ Irene Calboli and Edward Lee have gathered distinguished experts in the areas of trademarks, Internet domain names, and traditional knowledge for a discussion of a variety of issues that continuingly intensified globalization presents for trademark law. The volume, entitled Trademark Protection and Territoriality Challenges in a Global Economy, is a welcome contribution to the Series, edited by Peter Yu, which is designed ‘‘to undertake a critical inquiry of issues lying at the intersection of intellectual property and global development.’’ It might seem that trademark law should be immune to the pressures of globalization because trademarks are, in a sense, the most transnational of all types of intellectual property: The primary role of trademarks is unequivocal; they are designed to guide consumers in the marketplace and support fair competition among businesses. With minor exceptions, countries recognize the same types of protectable subject matter for trademarks, and this high degree of consensus ensures relative consistency in the protectability of marks in most countries. As indicators of the sources of goods and services, trademarks seem to fit perfectly into the globalized marketplace, including the digital superhighway on which they should serve as reliable direction signs. Despite the seeming suitability of trademarks for the worldwide marketplace, globalization has posed arguably greater challenges to trademark law than it has to copyright law and patent law. Trademarks are expected to serve their role in an