What Is So Special about Intangible Property? The Case for intelligent Carryovers

One of the major controversies in modern intellectual property law is the extent to which property rights conceptions, developed in connection with land or other forms of tangible property, can be carried over to different forms of property, such as rights in the spectrum or in patents and copyrights. This article defends the thesis that, once the differences in the optimal duration of patents and copyrights are taken into account, the carryover of basic property conceptions from tangible to intangible property should be much encouraged. In some instances, the property rights concepts applicable to land often work even better for intangible property because some of the difficulties in designing landbased systems disappear. The short life of patents, for example, obviates the need to create rules dealing with restraints on alienation over time. This article also critiques the recent development in eBay v. MercExchange that has limited the availability of injunctions in protecting exclusive rights of patent use. In a similar fashion, the article also notes that the limitations on rights of alienation in the spectrum create major social losses, as does the use of the patent exhaustion rule in the licensing of intellectual property, as applied by the Supreme Court in Quanta v. LG Electronics

Increasing access to credit through reforming secured transactions in the MENA Region

This paper provides a comparative summary of secured transactions systems related to the use of movable property as collateral in the MENA region vis a vis international practices in countries with modern secured transactions systems. The paper sets out the importance of introducing reforms in the area of secured transactions with the objective of increasing access to credit for businesses, particularly SMEs. The MENA region clearly lags behind all other regions in the introduction of secured transactions reforms. The paper summarizes many of the weaknesses common across the region. The two main critical areas that need urgent reforms are the creation of modern secured transactions laws and electronic movable collateral registries, and the need to improve enforcement mechanisms for security interests in movable property.Debt Markets,Bankruptcy and Resolution of Financial Distress,Access to Finance,Emerging Markets,E-Business

Contract-Wrapped Property

For nearly two centuries, the law has allowed servitudes that “run with” real property while consistently refusing to permit servitudes attached to personal property. That is, owners of land can establish new, specific requirements for the property that bind all future owners—but owners of chattels cannot. In recent decades, however, firms have increasingly begun relying on contract provisions that purport to bind future owners of chattels. These developments began in the context of software licensing, but they have started to migrate to chattels not encumbered by software. Courts encountering these provisions have mostly missed their significance, focusing instead on questions of contract doctrine, such as whether opening shrink wrap constitutes assent to be bound. Property concepts never enter their analysis. The result of this oversight is that courts have de facto recognized equitable servitudes on chattels—a category that our legal system has long forbidden. Yet because courts are often unfamiliar with property-law principles, and because lawyers have failed to make property-based arguments, individual contracts cases are remodeling the architecture of property rights without anyone realizing it.This Article identifies the unexpected emergence of servitudes on chattels via contract law. It explores the consequences of that development and argues that we should see it as deeply troubling. By unwittingly reestablishing equitable servitudes on chattels—something our legal system rejected long ago for good reason—this change in law threatens to undo longstanding precedent, disrupt settled expectations, and effectively recognize a new form of property. More generally, elevating contract over other private law doctrines disrupts the private law’s equilibrium in which a complementary suite of doctrines developed to promote economic liberty while curtailing opportunistic impulses. While the pathologies that have flourished internally in modern contract doctrine have been well studied by scholars, the way in which contract law is threatening to consume property and other areas of private law has received less attention. Using servitudes on personal property as a window into the larger problem of contract-dominated private law, this Article explores the private law’s role in shaping environmental conservation, autonomy, innovation, and the legitimacy of the law itself. Those values are all in jeopardy as if contract law is allowed to encroach on property and to erode the very concept of ownership

An investigation into international transfer pricing guidelines and the anomalies arising from business restructurings by multi-national enterprises

The number of multinational enterprises has increased substantially. In part due to the integration of national economies (the European Union), improvements in communication and technology and the opportunity to reduce costs as a result of globalisation. Transfer pricing and especially business restructuring within multinationals is a fairly new concept.Professional legal and audit firms have different views on how to approach business restructurings. This research analyses important transfer pricing aspects and the anomalies that arise through business restructurings. The research method used in this research paper is primarily qualitative, comprising the analysis of various documentary sources of data. Relevant South African and international case law, tax legislation, the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations, the Transfer Pricing Aspects of Business Restructurings Discussion Draft and other reports were consulted and analysed. Further the views of recognised legal and tax experts that have been published in technical journals and text books were also considered and examined. A hypothetical example of a business restructuring transaction was constructed in order to illustrate practical issues and different approaches to solving them. The research has argued that the arm’s length principle, which forms the bases of transfer pricing regulation, is not an exact science but theoretically it is the most suitable measure.It may not be able to incorporate all variables, such as the cost savings through synergies of multinational enterprises, but it promotes international trade and investment by ensuring that transactions are based on fair prices. Business restructurings create anomalies in applying the arm’s length principle but these anomalies can be dealt with within the regulatory structure. The business restructuring approach recommended is realistic and pragmatic, but more clarity may be needed in certain circumstances. The research has also discussed the avoidance of transfer pricing audits, including having appropriate transfer pricing policies and documentation

The End of Ownership: Personal Property in the Digital Economy

An argument for retaining the notion of personal property in the products we “buy” in the digital marketplace. The open access edition of this book was made possible by generous funding from Arcadia – a charitable fund of Lisbet Rausing and Peter Baldwin. If you buy a book at the bookstore, you own it. You can take it home, scribble in the margins, put in on the shelf, lend it to a friend, sell it at a garage sale. But is the same thing true for the ebooks or other digital goods you buy? Retailers and copyright holders argue that you don\u27t own those purchases, you merely license them. That means your ebook vendor can delete the book from your device without warning or explanation—as Amazon deleted Orwell\u27s 1984 from the Kindles of surprised readers several years ago. These readers thought they owned their copies of 1984. Until, it turned out, they didn\u27t. In The End of Ownership, Aaron Perzanowski and Jason Schultz explore how notions of ownership have shifted in the digital marketplace, and make an argument for the benefits of personal property. Of course, ebooks, cloud storage, streaming, and other digital goods offer users convenience and flexibility. But, Perzanowski and Schultz warn, consumers should be aware of the tradeoffs involving user constraints, permanence, and privacy. The rights of private property are clear, but few people manage to read their end user agreements. Perzanowski and Schultz argue that introducing aspects of private property and ownership into the digital marketplace would offer both legal and economic benefits. But, most important, it would affirm our sense of self-direction and autonomy. If we own our purchases, we are free to make whatever lawful use of them we please. Technology need not constrain our freedom; it can also empower us.https://repository.law.umich.edu/books/1114/thumbnail.jp

Kentucky Tax Law, Second Edition

A reference for Kentucky lawyers on real and personal property taxation, Kentucky sales and use taxation, Kentucky individual income taxation, corporate income taxation, and procedures before the Kentucky Board of Tax Appeals