Caught in the Net of Copyright

As an overture to this Comment, I\u27d like to begin with one of my favorite passages from the recent National Information Infrastructure (NII)Task Force Working Group Report on Intellectual Property and the NII-the so-called White Paper.\u27 The passage is not one of the deceptively bland legislative proposals-nor one of the strategic half-truths in the purported summary of current copyright law. Rather, it is a passage from the section on copyright awareness, and it is an excellent example of a good idea gone wrong. The good idea is that our elementary and secondary schools could take a role in preparing students for electronic citizenship, by, among other things, generating discussion of issues associated with intellectual property ownership. Unfortunately, the working out of this idea in the White Paper smacks more of a program of mind control than one of genuine education. High schoolers, we are told, should be taught to just say yes to licensing.\u27 The message for teaching the primary grades is similar. The White Paper notes that basic concepts of intellectual property . . . are easily taught at a young age. More complicated topics ... would likely be reserved for later study. However, complexity of the subject matter alone is not the only consideration

Copyright on the Internet: A Critique of the White Paper\u27s Recommendation for Updating the Copyright Act and How the Courts Are Already Filling in Its Most Important Shortcoming, On-Line Service Provider Liability

The current technological challenge for American copyright law is the National Information Infrastructure (NII), which is a network of networks used to carry digital transmissions through thousands of computer networks using a common set of protocols. Currently, the Copyright Act does not expressly include works created, copied, transmitted, or performed on the NII. President Clinton formed the Information Infrastructure Task Force (the Working Group) to articulate and implement the Administration\u27s vision for the National Information Infrastructure. On September 5, 1995, the Working Group released the White Paper which addresses special intellectual property concerns and issues raised by the development and use of the NII. The White Paper unquestionably makes solid strides in the direction of affording copyright protection to works transmitted on the NIL The primary problem with the report, however, is its self-admitted conservatism in refusing to make recommendations concerning issues that may prove to be a passing fad. The Working Group\u27s shortsightedness causes its recommendations either to be overly-restrictive or to fail to meet the needs of authors currently using the NIL In this Note, analysis of the White Paper falls into three parts. First, a summary of the relevant principles underlying copyright law, including a survey of cases pertinent to an analysis of copyright protection on the NII, will be presented. Second, the actual changes recommended by the White Paper will be analyzed. Third, the White Paper\u27s failure to set forth the law regarding the potential liability of on-line service providers will be examined using subsequent cases which have attempted to establish appropriate liability

Copyright on the Internet: A Critique of the White Paper\u27s Recommendation for Updating the Copyright Act and How the Courts Are Already Filling in Its Most Important Shortcoming, On-Line Service Provider Liability

The current technological challenge for American copyright law is the National Information Infrastructure (NII), which is a network of networks used to carry digital transmissions through thousands of computer networks using a common set of protocols. Currently, the Copyright Act does not expressly include works created, copied, transmitted, or performed on the NII. President Clinton formed the Information Infrastructure Task Force (the Working Group) to articulate and implement the Administration\u27s vision for the National Information Infrastructure. On September 5, 1995, the Working Group released the White Paper which addresses special intellectual property concerns and issues raised by the development and use of the NII. The White Paper unquestionably makes solid strides in the direction of affording copyright protection to works transmitted on the NIL The primary problem with the report, however, is its self-admitted conservatism in refusing to make recommendations concerning issues that may prove to be a passing fad. The Working Group\u27s shortsightedness causes its recommendations either to be overly-restrictive or to fail to meet the needs of authors currently using the NIL In this Note, analysis of the White Paper falls into three parts. First, a summary of the relevant principles underlying copyright law, including a survey of cases pertinent to an analysis of copyright protection on the NII, will be presented. Second, the actual changes recommended by the White Paper will be analyzed. Third, the White Paper\u27s failure to set forth the law regarding the potential liability of on-line service providers will be examined using subsequent cases which have attempted to establish appropriate liability

U.S. Customs and Border Protection: Trade Facilitation, Enforcement, and Security

[Excerpt] This report describes and analyzes import policy and CBP’s role in the U.S. import process. (The report does not cover CBP’s role in the U.S. export control system.) The first section of the report describes the three overarching goals of U.S. import policy and the tension among them. Second, the report provides a legislative history of customs laws, followed by an overview of the U.S. import process as it operates today. Third, the import process and CBP’s role in it are discussed. The final section highlights several policy issues that Congress may consider in its oversight role or as part of customs or trade legislation, including measures seeking to provide additional trade facilitation benefits to importers and others enrolled in “trusted trader” programs, to improve enforcement of intellectual property and trade remedy laws, to strengthen cargo scanning practices, and/or to promote modernization of customs data systems, among other issues. A list of trade-related acronyms used in the report is provided in Appendix A

Some Reflections on Copyright Management Systems and Laws Designed to Protect Them

Copyright management systems (CMS)—technologies that enable copyright owners to regulate reliably and charge automatically for access to digital works—are the wave of the very near future. The advent of digital networks, which make copying and distribution of digital content quick, easy, and undetectable, has provided the impetus for CMS research and development. CMS are premised on the concept of trusted systems or secure digital envelopes that protect copyrighted content and allow access and subsequent copying only to the extent authorized by the copyright owner. Software developers are testing prototype systems designed to detect, prevent, count, and levy precise charges for uses that range from downloading to excerpting to simply viewing or listening to digital works. In a few years, for example, an individual seeking online access to a collection of short fiction might be greeted with a menu of options including: Open and view short story A — $0.50, or$0.40 for students doing assigned reading (verified based on roster submitted by instructor) Open and view short story B (by a more popular author) — $0.80, or$0.70 for students Download short story A (encrypted and copy-protected) — $1.35 Download short story B —$2.25 Download entire collection — $15.00 Extract excerpt from short story A —$0.03 per 50 words Extract excerpt from short story B — $0.06 per 50 words CMS also loom large on the legislative horizon. Copyright owners have argued that technological protection alone will not deter unauthorized copying unless the law provides penalties for circumventing the technology. Although a bill to protect CMS against tampering failed to reach a vote in Congress last year, the World Intellectual Property Organization\u27s recent adoption of treaty provisions requiring protection means that Congress must revisit the question soon. Part II describes these developments. The seemingly inexorable trend toward a digital CMS regime raises two questions, which the author addresses in parts III and IV, respectively. First, broadly drawn protection for CMS has the potential to proscribe technologies that have indisputably lawful uses and also to foreclose, as a practical matter, uses of copyrighted works that copyright law expressly permits. How may protection for CMS be drafted to avoid disrupting the current copyright balance? Second, and equally fundamental, CMS may enable both pervasive monitoring of individual reading activity and comprehensive private legislation designed to augment—and possibly alter beyond recognition—the default rules that define and delimit copyright owners\u27 rights. Given the unprecedented capabilities of these technologies, is it also desirable to set limits on their reach

Patent Landscape of Influenza A Virus Prophylactic Vaccines and Related Technologies

Executive Summary: This report focuses on patent landscape analysis of technologies related to prophylactic vaccines targeting pandemic strains of influenza. These technologies include methods of formulating vaccine, methods of producing of viruses or viral subunits, the composition of complete vaccines, and other technologies that have the potential to aid in a global response to this pathogen. The purpose of this patent landscape study was to search, identify, and categorize patent documents that are relevant to the development of vaccines that can efficiently promote the development of protective immunity against pandemic influenza virus strains. The search strategy used keywords which the team felt would be general enough to capture (or “recall”) the majority of patent documents which were directed toward vaccines against influenza A virus. After extensive searching of patent literature databases, approximately 33,500 publications were identified and collapsed to about 3,800 INPADOC families. Relevant documents, almost half of the total, were then identified and sorted into the major categories of vaccine compositions (about 570 families), technologies which support the development of vaccines (about 750 families), and general platform technologies that could be useful but are not specific to the problems presented by pandemic influenza strains (about 560 families). The first two categories, vaccines and supporting technologies, were further divided into particular subcategories to allow an interested reader to rapidly select documents relevant to the particular technology in which he or she is focused. This sorting process increased the precision of the result set. The two major categories (vaccines and supporting technologies) were subjected to a range of analytics in order to extract as much information as possible from the dataset. First, patent landscape maps were generated to assess the accuracy of the sorting procedure and to reveal the relationships between the various technologies that are involved in creating an effective vaccine. Then, filings trends are analyzed for the datasets. The country of origin for the technologies was determined, and the range of distribution to other jurisdictions was assessed. Filings were also analyzed by year, by assignee, and by inventor. Finally, the various patent classification systems were mapped to find which particular classes tend to hold influenza vaccine-related technologies. Besides the keywords developed during the searches and the landscape map generation, the classifications represent an alternate way for further researchers to identify emerging influenza technologies. The analysis included creation of a map of keywords, as shown above, describing the relationship of the various technologies involved in the development of prophylactic influenza A vaccines. The map has regions corresponding to live attenuated virus vaccines, subunit vaccines composed of split viruses or isolated viral polypeptides, and plasmids used in DNA vaccines. Important technologies listed on the map include the use of reverse genetics to create reassortant viruses, the growth of viruses in modified cell lines as opposed to the traditional methods using eggs, the production of recombinant viral antigens in various host cells, and the use of genetically-modified plants to produce virus-like particles. Another major finding was that the number of patent documents related to influenza being published has been steadily increasing in the last decade, as shown in the figure below. Until the mid-1990s, there were only a few influenza patent documents being published each year. The number of publications increased noticeably when TRIPS took effect, resulting in publication of patent applications. However, since 2006 the number of vaccine publications has exploded. In each of 2011 and 2012, about 100 references disclosing influenza vaccine technologies were published. Thus, interest in developing new and more efficacious influenza vaccines has been growing in recent years. This interest is probably being driven by recent influenza outbreaks, such as the H5N1 (bird flu) epidemic that began in the late 1990s and the 2009 H1N1 (swine flu) pandemic. The origins of the vaccine-related inventions were also analyzed. The team determined the country in which the priority application was filed, which was taken as an indication of the country where the invention was made or where the inventors intended to practice the invention. By far, most of the relevant families originated with patent applications filed in the United States. Other prominent priority countries were the China and United Kingdom, followed by Japan, Russia, and South Korea. France was a significant priority country only for supporting technologies, not for vaccines. Top assignees for these families were mostly large pharmaceutical companies, with the majority of patent families coming from Novartis, followed by GlaxoSmithKline, Pfizer, U.S. Merck (Merck, Sharpe, & Dohme), Sanofi, and AstraZeneca. Governmental and nonprofit institutes in China, Japan, Russia, South Korea and the United States also are contributing heavily to influenza vaccine research. Lastly, the jurisdictions were inventors have sought protection for their vaccine technologies were determined, and the number of patent families filing in a given country is plotted on the world map shown on page seven. The United States, Canada, Australia, Japan, South Korea and China have the highest level of filings, followed by Germany, Brazil, India, Mexico and New Zealand. However, although there are a significant number of filings in Brazil, the remainder of Central and South America has only sparse filings. Of concern, with the exception of South Africa, few other African nations have a significant number of filings. In summary, the goal of this report is to provide a knowledge resource for making informed policy decisions and for creating strategic plans concerning the assembly of efficacious vaccines against a rapidly-spreading, highly virulent influenza strain. The team has defined the current state of the art of technologies involved in the manufacture of influenza vaccines, and the important assignees, inventors, and countries have been identified. This document should reveal both the strengths and weaknesses of the current level of preparedness for responding to an emerging pandemic influenza strain. The effects of H5N1 and H1N1 epidemics have been felt across the globe in the last decade, and future epidemics are very probable in the near future, so preparations are necessary to meet this global health threat

The evolution of anti-circumvention law

Countries around the world have since 1996 updated copyright laws to prohibit the circumvention of "Technological Protection Measures", technologies that restrict the use of copyright works with the aim of reducing infringement and enforcing contractual restrictions. This article traces the legislative and treaty history that lies behind these new legal provisions, and examines their interaction with a wide range of other areas of law: from international exhaustion of rights, through competition law, anti-discrimination measures, regulation of computer security research, constitutional rights to freedom of expression and privacy, and consumer protection measures. The article finds that anti-circumvention law as promoted by US trade policy has interfered with public policy objectives in all of these areas. It picks out key themes from the free trade agreements, legislation and jurisprudence of the World Trade Organization, World Intellectual Property Organization, USA, EU member states, and South American, Asian and Australasian nations. There is now a significant movement in treaty negotiations and in legislatures to reduce the scope of anti-circumvention provisions to ensure their compatibility with other important policy objectives

A New Paradigm for Intellectual Property Rights in Software

A Winter 2004 article by Bradford L. Smith and Susan O. Mann of Microsoft published in The University of Chicago Law Review suggests that the development and growth of the software industry in the U.S. is a direct outgrowth of the implementation of intellectual property regimes, specifically copyright and patent, with respect to software in the late 1970s and early 1980s. This paper suggests that such patents were neither the sole nor the principal factor for the development of the software industry, that concerns about patents manifested prior to or soon after their application to software have proven true, and that patents are, in fact, not serving the interests of either the U.S. software industry or the consuming public. To that end, this paper advances recommendations for reforming the U.S. patent system as well as consideration of a new schema for protecting software