Scope Of Intellectual Property Rights Research Articles

Intellectual Property and the Constitutional Court of South Africa: Lessons from the Deployment of Adjudicative Strategies

The Constitutional Court of South Africa recently handed down its fourth decision so far in the field of intellectual property. These decisions came against the backdrop of reforms and reform proposals concerning intellectual property rights in South Africa. These reforms and reform proposals were prompted by the need to establish intellectual property laws that are attuned to South Africa’s local context and needs, while complying with South Africa’s international treaty obligations. Parallel to South Africa’s policy and legislative agenda, this paper recognises these four decisions (referred to as the “IP quartet”) as the emergence of an intellectual property rights jurisprudence. The paper analyses the IP quartet and identifies a coherent narrative with respect to the intersection between intellectual property rights and constitutional rights and the appropriate approach to determining their real-life applications. The paper also explains this intellectual property rights jurisprudence and its contribution, and considers the adjudicative strategies employed by the Constitutional Court in applying constitutional provisions to dealing with issues involving intellectual property rights. An explanation of this jurisprudence arising from these cases will: (a) promote an understanding of the scope of intellectual property rights including the appropriate nature of their intersection with constitutional provisions (specifically fundamental rights expressed in Chapter 2 of the South African Constitution); and (b) offer some guidance to lower courts and the executive arm of government on the appropriate approach to the interpretation, conceptualization and application of the intellectual property legal framework.

UNDERSTANDING INTELLECTUAL PROPERTY RIGHTS IN THE INDONESIAN TRADING BUSINESS

This article aims to find out the concept of Intellectual Property Rights (IPR) in Indonesia and its application in business ventures. In general, Indonesia has recognised IPR and has passed a number of laws related to IPR protection. This research uses a literature approach method, where data is obtained from secondary sources, both from books, articles and various references related to this research. The results show that the application of IPR in Indonesia is still experiencing various problems, where many IPR results are violated. Conversely, law enforcement against IPR violations is still very weak. This is inseparable from the scope of IPR which is categorised as part of civil law. This means that if no one reports and feels harmed by the IPR violation, then the violation is not followed up or handled by the authorities.

A Survey of Intellectual Property Rights Protection in Big Data Applications

Big Data applications have the potential to transform any digital business platform by enabling the analysis of vast amounts of data. However, the biggest problem with Big Data is breaking down the intellectual property barriers to using that data, especially for cross-database applications. It is a challenge to achieve this trade-off and overcome the difficulties of Big Data, even though intellectual property restrictions have been developed to limit misuse and regulate access to Big Data. This study examines the scope of intellectual property rights in Big Data applications with a security framework for protecting intellectual property rights, watermarking and fingerprinting algorithms. The emergence of Big Data necessitates the development of new conceptual frameworks, security standards, and laws. This study addresses the significant copyright difficulties on cross-database platforms and the paradigm shift from ownership to control of access to and use of Big Data, especially on such platforms. We provide a comprehensive overview of copyright applications for multimedia data and a summary of the main trends in the discussion of intellectual property protection, highlighting crucial issues and existing obstacles and identifying the three major findings for investigating the relationship between them.

PERLINDUNGAN HUKUM PATEN ASING YANG TELAH TERDAFTAR DI INDONESIA

THE PROTECTION OF FOREIGN PATENTS BASED IN INDONESIA
 The establishment of Law number 14 of 2001 concerning Patentas a follow up policy after the ratification of the World Trade Organization (WTO) including its attachment concerning Trade Related Intellectual Property Rights (TRIPs) has brought legal consequence. That is to apply The TRIPs agreement in nationallaw where one of the principle is known the National principletoward foreign patents in Indonesia. Patent is one of the scopeof intellectual property rights. A patent is granted to a person or a group of people its discovery in the field of technologywhich has a very important position and strategically tosupport. A patent is an exclusive right granted by the State tothe inventor's top invensinya in the field of technology and thepeople who got the rights to it. The patent is necessary tosupport the variety of life in the community. The foreign Patentrights will be preserved as long as the invention has registeredto directorate-general of Intellectual Property Rights of theRepublic of Indonesia. The invention registration could beapplied in 2 (two) mechanism i.e. priority right registration andPatent Cooperation Treaty (PCT) and the application must beauthorized by Indonesian IPR consultant. Patent Law No. 13 year 2016 do not only provide protection against patent citizensof Indonesia but also provides protection against patent lawforeign citizens in Indonesia. The protection of the law wasgiven in order to increase investment in Indonesia and wouldenhance inventor's top invention useful for developments in society. To give a sense of security, convenient to the Inventor'sforeign country then provide protection. All countries need toratify them to protect the IPR of their citizens at theinternational level. This research concerns with thearrangement and implementation of patent protection throughPCT and RUP. This research concludes that the internationalconventions have been made to accommodate and guaranteethe legal aspect of the Treaty, such as Trips, PCT and WIPO. As a country which has ratified the Treaty, Indonesia has issuedPresidential Decree No. 16 of 1997 which is finalized into Law No. 13 of 2016 on Patents (Article 33), stating that applicationsmay be filed under a Patent Cooperation Treaty. This researchalso points out that although it’s believed that all countries willbenefit from PCT and RUP, PCT has not attracted significantnumbers of applicants. That means, there is still much work tobe done in invention patenting law foreign citizens in Indonesia.
 Keywords : legal protection, patents, foreign patent.

Updating legislation in the field of intellectual property in the conditions of recodification: directions, problems, prospects

Keywords: systematization; recodification; legislation; intellectual property; collision;protection of rights; the results of intellectual, creative activity
 Implementation ofan innovative model in Ukraine is not possible without the creation of a modern systemof regulatory relations in the field of protection of intellectual property that would ensureprotection of human subjects of creative work (authors, artists, and inventors), guaranteeingobservance of their rights, and protection against possible violations.The first steps in improving a legal mechanism for the use of results of intellectualand creative activities are laid in adopted in 2003 by the Civil Code of Ukraine, which notonly greatly expanded the scope of intellectual property rights, but also significantly enrichedits substance. In the Civil Code of Ukraine relations in the field of intellectualproperty were first fixed in a separate structural part (book 4 «Intellectual PropertyRights»), which indicates their importance to private law.Further improvement of the normative array in the field of protection of the results ofcreative activity should provide for the specification of the provisions of the Civil Code ofUkraine at the level of laws and by-laws, aimed at the formation of reliable legal mechanismsfor the implementation and protection of intellectual property rights. However,only now changes have been made to special laws in the field of intellectual property. In2014, Ukraine signed an Association Agreement with the EU. It became necessary tobring the existing regulatory material not only to the Civil Code of Ukraine, but also tocomply with the approaches defined in the provisions of the Association Agreement,Chapter 9 of which contains the requirements and standards for the protection of intellectualproperty rights.The article examines the problems of updating and systematizing the legislation ofUkraine in the field of legal protection of the results of intellectual, creative activity,analyses the collisions and shortcomings of certain norms governing relations in the fieldof intellectual activity. The legal basis for the regulation of the protection of differenttypes of intellectual property objects is investigated, the ways of their improvement aredetailed, the steps taken in this direction in Ukraine are described. Within the frameworkof the research subject, the shortcomings of special legislation, as well as the normsof the Civil Code of Ukraine, contradictions between various legislative acts in the field ofintellectual property are noted and ways of their resolution are proposed.

Unfair Competition in the Field of Intellectual Property Rights: Analyzing Concepts, Acts of Unfair Competition and Laws

This study aims to analyze Unfair Competition in the field of Intellectual property rights. This research seeks to explore and show how the concept of unfair Competition interferes in the area of intellectual property rights. Furthermore, we have investigated how competition law and intellectual property rights interfere with each other. The research evaluates unfair competition practices in the scope of intellectual property rights, referring to specific international laws directly related to each course. Finally, it examines the regulatory system that governs these sectors. Reference is made particularly to the Chinese Anti-Unfair Competition Law and other international laws on trademark practices. As far as the study's methodology is concerned, qualitative data analysis is applicable alongside with comparative legal method for analyzing "de lege lata" and "de lege feranda" situations in a range of the concluded topic. The study finds out that Unfair Competition in the domain of Intellectual Property rights involves actions by an operator that infringe the legislation's rules, harm operators' legitimate rights and interest on the market, thereby threatening socio-economic order. The study concluded that Unfair Competition acts in the field of Intellectual Property rights (like Industrial espionage, infringement of trade secrets, trademark infringement) impede innovation, stifle, and affect Competition in the real market. And the occurrence of these Unfair Competition practices is common, even though there are existing legal frameworks that regulate this sector. The research reveals an international regulatory system such as the Paris Convention 1883, the Patent Act 1977, and the Espionage Act 1996 have specific and statutory laws that target unfair competition practices. The Chinese Anti-Unfair Competition Act 1993 forbids unfair Competition in intellectual property rights and defends operators and citizens from unfair competition practices. The study also deduces that the existing legal framework regulating this sector is practical to a small extent because these Unfair Competition Practices are still very much detectable in the trade sector. As most legal frameworks dwell on civil liabilities instead of criminal penalties, operators can easily violate the law by relying on whether they can afford the civil penalties. There are recent amendments to adjust and adapt to the evolution of patterns and daily market innovations (Example: Amendment of the Chinese Anti-Unfair Competition Law in 2003). We concluded the study by bringing in suggestions and recommendations. Qualitative research methodology applies to the following article.

특허 포트폴리오의 어휘 다양성과 특허성과의 관계

This study examines how technology diversification is related to patent quality by using text-based analysis. Technology diversification is a type of a firm’s R&D strategy aimed at extending the scope of intellectual property rights and thereby expanding its influence on competitors in the technology-based market. Diversifying technology stock has the benefits of becoming nimble in the fast-changing technological environment and enabling firms to affect the entrance of new players in the market. However, technological diversification has the risk of failing to concentrate R&D resources, which likely results in producing only fragmented patents that are less impactful on subsequent technology. This study uses text-mining analysis to develop a content-based indicator that can effectively measure the level of technology diversification. This work also introduces lexical diversity and patent-stock heterogeneity based on term-matrix similarity and performs an analysis of their potential as a consistent measure for diversification level. Regression analyses using lexical diversity produces meaningful implications. The results show that unlike the classification-based approach, lexical diversity has a consistent and positive correlation with forward citations, which suggests that all other factors being equal, diversified patent stocks are likely to have more impact on future technology.

Нейросети как элемент интеллектуального капитала общества

In the article deals with the formation of modern neural networks, the possibilities of their inclusion in various production and social chains. What part of intellectual capital are intellectual property, neural networks themselves? Factors affecting the scope of intellectual property rights in Russia are evaluated. This segment of the market will become the arena of competitive activity in the near future.

The Right to Process Data for Machine Learning Purposes in the EU

Europe is now at a crucial juncture in deciding how to deploy data driven technologies in ways that encourage democracy, prosperity and the well-being of European citizens. Normative preferences about how related technology laws ought to be designed should define sustainable exponential innovation policy. These preferences are dynamic and contextual. The upcoming European Data Act provides a major window of opportunity to change the story. In this respect, it is key that the European Commission takes firm action, removes overbearing policy and regulatory obstacles, strenuously harmonizes relevant legislation and provides concrete incentives and mechanisms for access, sharing and re-use of data. The article argues that to ensure an efficiently functioning European data-driven economy, a new and as yet unused term must be introduced to the field of AI & law: the right to process data for machine learning purposes. To make AI and machine learning thrive, we should critically re-examine the applicability and scope of intellectual property rights to data, including copyrights, sui generis database rights and trade secrets. The article demonstrates that exclusive de facto possession or control over machine learning input training, testing and validation datasets hinders healthy competition, a fair level playing field and rapid European innovation. The article rejects exclusive legal ownership rights over autonomously machine generated non-personal data, including AI made creations and inventions: this output belongs to the public domain. Machines do not need incentives, people need freedom of expression and businesses need freedom to operate. Synchronous to harmonized legislation, the social impact of digital transformation can be balanced and regulated by the architecture of digital systems. Embedding values in design should become a fundamental starting point of our data paradigm. Data has become a primary resource that should not be enclosed or commodified per se, but used for the common good. Commons based production and data for social good initiatives should be stimulated by the state. We need not to think in terms of exclusive, private property on data, but in terms of rights and freedoms to use, (modalities of) access, process and share data. If necessary and desirable for the progress of society, the state can implement new forms of property. Against this background the article explores normative justifications for open innovation, drawing inspiration from the works of canonical thinkers such as Locke, Marx, Kant and Hegel. Whether or not data as digital assets are ultimately admitted to the numerus clausus of legal objects i.e. acknowledged as subject matter eligible for private ownership, or whether other modalities and states of property are being developed, the article maintains that there should also be exceptions to (de facto, economic or legal) ownership claims on data that provide user rights and freedom to operate in the setting of AI model training. The article concludes that this exception is conceivable as a legal concept analogous to a quasi, imperfect usufruct in the form of a right to process data for machine learning purposes. A combination of usus and fructus (ius utendi et fruendi), not for land but for primary resource data. A right to process data that works within the context of AI and the Internet of Things (IoT), and that fits in the EU acquis communautaire. Such a right makes access, sharing and re-use of data possible, and helps to fulfil the European Strategy for Data’s desiderata.

Risk Taking and Rights Balancing in Intellectual Property Law

Scholars have long worried that risk aversion can have significant negative effects in the marketplace. In the intellectual property law domain, some have worried that risk-averse actors can negatively influence the development of important intellectual property law doctrines, which can ultimately hamper innovation. For instance, risk-averse actors may frequently choose to obtain licenses for rights that the relevant laws do not actually require of them. When they do so, they inadvertently increase the scope of intellectual property rights because their risk-averse activities inform courts’ development of key intellectual property law doctrines. In this Article, prepared as part of the IP Scholars Forum at Akron Law, I look at the other side of the risk coin. In particular, I argue that early-stage companies, and sometimes later-stage companies as well, are often willing to take on significant intellectual property risks in pursuit of commercial opportunities. And by providing courts with opportunities to take head-on key intellectual property questions, these risk-taking activities, in effect, may often help counterbalance whatever negative effects the behavior of risk-averse actors entails. I examine reasons why both types of entities are often willing to take on intellectual property risks. And I review a number of examples where both early and later-stage companies have heavily influenced the development of key intellectual property law doctrines by being willing to take their intellectual property disputes to court. This review, however, highlights several reasons why early-stage companies are more dependable risk-taking entities than later-stage companies. I thus conclude by briefly assessing two intellectual property-related means by which to specifically encourage early-stage companies to continue to take on intellectual property risks.

Competition Policy, Trade and the Global Economy: Existing WTO Elements, Commitments in Regional Trade Agreements, Current Challenges and Issues for Reflection

Competition policy, today, is an essential element of the legal and institutional framework for the global economy. Whereas decades ago, anti-competitive practices tended to be viewed mainly as a domestic phenomenon, most facets of competition law enforcement now have an important international dimension. Examples include: the investigation and prosecution of price fixing and market sharing arrangements that often spill across national borders and, in important instances, encircle the globe; multiple recent, prominent cases of abuses of a dominant position in high-tech network industries; important current cases involving transnational energy markets; and major corporate mergers that often need to be simultaneously reviewed by multiple jurisdictions. Beyond competition law enforcement per se, increasingly, major issues of competition policy (e.g., the impact on competition of the structure and scope of intellectual property rights or the role of state-owned enterprises) implicate the interests of multiple jurisdictions. To date, efforts to establish a general agreement on competition policy in the framework of the international trading system have been unsuccessful. Nonetheless, provisions relating to competition policy are incorporated in the WTO General Agreement on Tariffs and Trade (GATT); the General Agreement on Trade in Services (GATS); the Agreement on Trade-Related Intellectual Property Rights (TRIPS Agreement); the Agreement on Trade-Related Investment Measures (TRIMs Agreement); and other WTO instruments. Effective national competition policies are also essential to realizing the benefits derivable from participation in the (plurilateral) WTO Agreement on Government Procurement (GPA). The importance of competition policy for world trade is also manifested by the increasing incorporation of undertakings on competition policy in the Protocols of Accessions that apply to new WTO Members, and in the work of the WTO Trade Policy Review Body, which systematically references developments regarding national competition policies in developed and developing jurisdictions. Beyond this, as set out in this paper and further manifesting the significance of competition policy for international trade, detailed chapters on competition policy have been incorporated in numerous bilateral and regional trade agreements (RTAs) linking developed and developing economies around the globe. The WTO Working Group on the Interaction between Trade and Competition Policy, which was active from 1997 through 2003 and which considered the case for a more general agreement on competition policy in the WTO, has been inactive since 2004. It is, nonetheless, available as a potential vehicle for stocktaking of developments and reflection on relevant issues if ever WTO Members find this useful and timely. A salient related consideration is that, whereas in 1997, when discussion commenced in the WTO Working Group, only around 50 economies in the world had national competition legislation, currently, about 135 WTO Members have such laws. These include all of the BRICS economies (Brazil, Russia, India, China and South Africa) and a large number of other developing WTO Members. Concurrent with the foregoing developments, increasing attention is being given, in international policy circles, to particular issues of competition law enforcement and competition policy with significance for the global economy. These include: • The international dimension of competition law cases: the resulting positive spillovers for economic welfare and potential for conflicts of jurisdiction; • The broadening application of competition policy vis-a-vis intellectual property rights in the global economy; • Important issues concerning the potential for monopolization and the maintenance of competition in digital markets; • Issues concerning state-owned enterprises, the role of industrial policy and the maintenance of competitive neutrality in emerging economies; and • A mounting concern, on the part of global businesses, to ensure non-discrimination, transparency and procedural fairness in competition law enforcement worldwide. This paper reviews and reflects upon these and related developments. It proceeds from the premises that important synergies exist between trade and competition policy and that it is reasonable to acknowledge this and inquire whether additional steps are desirable to ensure the full realization of the relevant synergies. The paper is intended to serve as a resource for reflection on related issues, if and/or when WTO Members decide to undertake such an exercise. Even so, it is recognized that the issues are complex, and that simplistic or overly ambitious or prescriptive solutions will not be helpful. In this light, the closing portions of the paper reflect upon the importance of relevant international learning processes; the actual and potential contributions of the WTO in this regard; and prospects for the future.

A Study on the Principle of Re-recognition and Institutionalization of the National Intangible Cultural Properties in the Public Interest Perspective

이 글은 국가무형문화재 제도를 둘러싼 갈등의 원인을 찾고, 행정이 추구하는 공공성의 관점과 원리를 통해서 차후 제도 수립의 근거와 방향 모색의 가능성을 시사하고자 했다. 그 결과는 아래와 같다. 첫째, 국가무형문화재 둘러싼 갈등의 원인은 인간 본성 자체에서 나오는 홉스의 세가지 분쟁원인과 무용사회가 지닌 구조적 · 생리적 · 생태적 특성 때문이다. 또한 새롭게 개정되는 제도에 대한 두려움과 전통적으로 물려받은 무형유산은 후대에게도 잘 보전하여 전승해줘야 하는 공적 영역이라는 인식의 부족 등을 꼽을 수 있다. 둘째, 공공성으로 바라본 국가무형문화재는 관계적 예술로 인해 전형(典型)화 된 한국을 대표하는 무형유산으로, 선대에게 물려받은 그 전형을 미래 후대에게도 전승하여 공공선 ·공공참여 ·공적행복이라는 이상적 실현의 공적 결과를 추구하는 한국의 대표공공재라고 할 수 있다. 셋째, 이러한 관점으로 본 국가무형문화재는 크게 공개성 · 공유성 · 공익성의 원리를 중심으로 제도 개선안의 수립이 가능할 것으로 보인다. 예를 들어 공개성은 모든 국가무형문화재의 조사 · 지정 · 인정 · 관리 · 결과 등의 일련 과정과 내용들을 공개하는 것이며, 공유성은 이수발급의 권한, 보유자라는 호칭, 지식 재산권의 적용 범위에 관한 제도 방향의 원리로서 적용될 수 있고, 마지막으로 공익성은 이수자격 및 향유대상의 저변확대, 글로벌 시장성 개발의 독려, 전수자 개인혜택의 강화 등과 관련된 제도 수립의 철학적 명분이 될 것으로 기대해본다.This study aimed to find the causes of the conflicts over the national intangible cultural heritage system and suggest the possibility of seeking the grounds and directions for establishing the future system through the viewpoint and principle of publicity pursued by the administration. The results are as follows. First, the causes of the conflicts over national intangible cultural heritage are due to Hobbes three causes of conflict and the structural, physiological and ecological characteristics of the dance society. The fear of a newly revised system and the lack of public awareness that traditionally inherited intangible heritage must be well preserved and handed down to future generations. Second, national intangible cultural heritage viewed from the perspective of publicness is the intangible cultural heritage representative of Korea that is typical of relational arts. It is Korea s representative public goods pursuing the public outcome called the ideal realization of public good, public participation, and public happiness by passing the inheritance from ancestors onto future generations. Third, from this point of view, the country’s intangible cultural heritage will be able to establish a plan to improve the system focusing on the principle of openness, commonality and publicness. For example, openness is to disclose process and content such as investigation, designation, recognition, management, and result of a country’s entire intangible cultural heritages. Commonality is the principal to direct a system about the authority to issue certificates, the title of holders, and the application scope of intellectual property rights. Lastly, publicness will be a philosophical justification for establishing the system related to the expansion of the base of certificate qualifications and subjects for enjoyment, the promotion of global marketability development, and the strengthening of personal benefits of initiates.

The TTIP and Its Investment Protection: Will the EU Still Be Able to Regulate Intellectual Property?

The Transatlantic Trade and Investment Partnership (TTIP) is a bilateral trade agreement that is currently being negotiated between the European Union and the United States. One of its principal characteristic consists in the inclusion of intellectual property rights under the investments protected by a specific section of the agreement, the implementation of which would be the responsibility of arbitration tribunals or a special jurisdiction for investment protection still to be created. Hence, this article explores the crucial question whether a regulation of intellectual property by the European Union or one of its Member States, which would affect the scope of intellectual property rights held by private companies, could be considered as a potential infringement of their protected investments and accordingly lead to proceedings being lodged against the European Union or one of its Member States. This would considerably limit the future room to manoeuvre of the European institutions and their power to regulate in order to implement a balanced and effective legislative framework for intellectual property, at a time when the creation of an efficient ecosystem for innovation is more than urgently needed in the European Union.

The TTIP and its Investment Protection: Will the EU Still be Able to Regulate Intellectual Property?

The Transatlantic Trade and Investment Partnership (TTIP) is a bilateral trade agreement that is currently being negotiated between the European Union and the United States. One of its principal characteristic consists in the inclusion of intellectual property rights under the investments protected by a specific section of the agreement, the implementation of which would be the responsibility of arbitration tribunals or a special jurisdiction for investment protection still to be created. Hence, this article explores the crucial question whether a regulation of intellectual property by the European Union or one of its Member States, which would affect the scope of intellectual property rights held by private companies, could be considered as a potential infringement of their protected investments and accordingly lead to proceedings being lodged against the European Union or one of its Member States. This would considerably limit the future room to manoeuvre of the European institutions and their power to regulate in order to implement a balanced and effective legislative framework for intellectual property, at a time when the creation of an efficient ecosystem for innovation is more than urgently needed in the European Union.

AUDYT KOMUNIKACYJNY I AUDYT ZARZĄDZANIA WIEDZĄ JAKO PRZYKŁADY AUDYTU ZASOBÓW NIEMATERIALNYCH ORGANIZACJI

Along with the development of the Internet and information technologies, broadening of the scope of intellectual property rights and occurrence of the intellectual leverage effect with regard to the use of knowledge in preparing innovative products and services, it is possible to observe a growth in the importance of intangible assets in building strategic advantage of business entities. Important is that effective organisation management requires skilful use of information reflecting functioning of all subsystems of a given institution, including the functional systems (such as communication system and knowledge management system classified as intangible assets). Such knowledge is provided by an internal audit being a tool including independent and objective analysis of efficacy and efficiency of processes, which is used first of all to facilitate these processes. The purpose of this study is thus to present the possibility of using the audit in business practice of intangible assets management with regard to communication system and knowledge management system.

Rebels or profiteers? Biohackers The Politics of Open Science Alessandro Delfanti Pluto Press, 2013. 168 pp.

Rebels or profiteers? <b>Biohackers</b> The Politics of Open Science <i>Alessandro Delfanti</i> Pluto Press, 2013. 168 pp.

Overlapping Intellectual Property Doctrines: Election of Rights versus Selection of Remedies

Overlaps exist across various doctrines in federal intellectual property law. Software can be protected under both copyright law and patent law; logos can be protected under both copyright law and trademark law. Design patents provide a particular opportunity to consider the issue of overlap, as an industrial design that qualifies for design patent protection might also, in particular circumstances, qualify for copyright protection as well as function as protectable trade dress.When an overlap issue arises — that is, when an intellectual property rights holder asserts rights under more than one doctrine — the question then becomes how courts should respond. One response, of course, is that courts should do nothing, on the theory that the doctrines developed in a way that permit such overlapping rights, and so the courts should continue to enforce them. The opposing response is to argue that overlapping rights make it difficult for intellectual property users to determine the scope of another’s rights, particularly when those rights have different terms or limitations, and so the courts should require intellectual property owners to choose the right they want enforced at the outset.Neither response is entirely satisfying. Without some signal from Congress that it intended to limit the scope of intellectual property rights when overlaps occur, the imposition of restrictions by the courts simply to achieve predictability for users seems problematic. At the same time, courts should not be blind to the difficulties that doctrinal overlap pose for potential defendants and the temptation it presents to intellectual property owners to push for even stronger protection.This Article therefore proposes something of a middle ground. Courts should not require intellectual property owners to elect one form of protection at the outset. But they should be attentive to whether the right asserted in any litigation proceeding aligns with the harm claimed by the plaintiff and, relatedly, should try to devise remedies that address only those harms.

A Numerus Clausus Principle for Intellectual Property

Real property can only be held and conveyed in a small number of forms, such as fee simple, life estate, and lease. This principle is known as numerus clausus, meaning “the number is closed.” For centuries, the principle has been central to the common-law system of property rights. Scholars have justified it as a mechanism for facilitating effective property alienation, maintaining low transaction costs in the buying and selling of property, and keeping the scope of property owners’ rights clear. In contrast, the numerus clausus principle is essentially nonexistent in intellectual property law. In the context of patents and copyrights, “the number is open.” There is nearly no limit to the ways in which intellectual objects can be licensed and sold. This Article will argue that the numerus clausus principle should extend to intellectual property. The justifications for the numerus clausus principle in real property law are even more persuasive in the intellectual property context because the scope of intellectual property rights is more difficult to delineate than the scope of real property rights. The metaphysical nature of intellectual property prevents protected objects from being clearly identifiable, particularly in a patent context, where inventions can be independently created by multiple parties. As a result, investigating the sale and licensing history of a work or invention — and whether a work or invention is protected at all — is difficult, costly, and sometimes impossible. This difficulty is compounded by the absence of numerus clausus, which permits inscrutable licensing and sale agreements and allows single works to be carved into several parts and burdened by complicated usage rules. By considering examples of digital content licensing and fragmentation of particular copyrights, this Article will identify how a numerus clausus principle for intellectual property would facilitate the use and conveyance of intellectual property. This principle would benefit intellectual property owners, licensees, and the general public by lowering transaction costs and preventing accidental overuse and underuse of intellectual works.

Copyright Abolition and Attribution

Abstract An increasing number of scholarly voices challenge the balance between incentives and deadweight losses created by intellectual property rights. In their book Against Intellectual Monopoly (2008), Boldrin and Levine) move beyond pragmatic calls to fine-tune the scope of intellectual property rights to question the very premises of the quid pro quo underlying the intellectual property rights system. In this brief essay, we contemplate the effects of removing traditional copyright protection. We draw upon the available literature in economic theory and copyright scholarship to examine the likely incentive effects of copyright abolition on authors, while considering the available non-legal forms of remuneration for authors. Furthermore, we contemplate a version of copyright protection grounded and limited to a mandatory right of attribution.

Decoding and Recoding Natural Monopoly, Deregulation, and Intellectual Property

The paper examines a parallel between arguments in the deregulation movement to limit the scope of natural monopolies and arguments for limiting the scope of exclusivity for intellectual property. The first part of the paper examines natural monopoly regulation as a metaphor for understanding intellectual property drawing on arguments based on declining average costs of production and negligible marginal costs of distribution. The author concludes that while the cost arguments often surface as a justification for intellectual property, cost-based justifications do not offer a satisfactory basis for determining the scope of intellectual property rights. The second part of the paper turns to critiques of natural monopoly regulation and develops arguments from these critiques for limiting intellectual property rights. The paper concludes with three principles to guide intellectual property reform: (1) recognizing the role of the user in properly determining the value of intellectual property; (2) identifying the role of potential competition in determining the scope of intellectual property rights; and (3) recognizing the role of political economy in shaping the regulatory role of intellectual property.