Towards a New Core International Copyright Norm: The Reverse Three-Step Test

This paper argues that international copyright treaties, such as the WTO TRIPS Agreement, should no longer be developed as sets of minimum standards with a standardized exception filter, namely the three-step test, but rather include a normative standard for the copyright rights themselves. In seeking harmony between rights and exceptions, and in light of copyright haphazard evolution (by simply adding new rights when a new way of using protected content was invented), a single new core norm is proposed: the reverse three-step test

Transmissions of Music on the Internet

This Article examines the status of copyright laws in several countries as they pertain to transmissions of music on the Internet. Because the exact legal ramifications of music transmissions over the Internet are currently unclear, the Author compares copyright laws of six major markets and examines the potential application of the copyright laws and other rights that may apply. The Article also discusses rules concerning which transborder transmissions are likely to be covered by a country\u27s national laws, as well as specific rules applying to the liability of intermediaries. Next, the Article summarizes the comparative findings and discusses the relevant nuances that exist among the countries covered. Finally, the Article applies its findings to several real-life examples and details the practical impact of current and future copyright laws on the varying fact patterns

Improper Appropriation

The traditional (Arnstein) test for copyright infringement is satisfied when the owner of a valid copyright establishes unauthorized copying by the defendant. To demonstrate unauthorized copying, one of the major tests is that the plaintiff must first show that her work was actually copied; second, she must establish substantial similarity and/or that the copying amounts to an improper or unlawful appropriation. The second prong is satisfied when (i) protected expression in the earlier work was copied and (ii) the amount of the copyrighted work that is copied must be more than de minimis. This Article examines, first, how impropriety has been applied in copyright infringement cases, and, second, whether the test could (doctrinally) and should (normatively) perform additional work as we move ever more into an era of massive creative reuse of existing works, whether as appropriation art, user-generated content or otherwise. The Article suggests that the notion of propriety should play an enhanced role, especially in cases of reuse of pre-existing copyrighted works

The Protection of Databases

In Parts I and II of this Paper, the author analyzes the legal protection of databases first in international treaties, in particular the Berne Convention and the WTO TRIPS Agreement, and second under national and regional copyright, sui generis, or other (e.g., tort) law in Europe (both the European Directive on the legal protection of databases of 1996, which was under review, and a number of relevant national laws), the United States, and a number of foreign jurisdictions (Australia, Canada, China, Nigeria, Russia, and Singapore). In Part III, the author provides a critical analysis of the effort to expand the legal protection of databases from both theoretical and empirical perspectives. In his conclusion, the author suggests three paths for the future evolution of the protection of databases at the international level

The Protection of Databases

In Parts I and II of this Paper, the author analyzes the legal protection of databases first in international treaties, in particular the Berne Convention and the WTO TRIPS Agreement, and second under national and regional copyright, sui generis, or other (e.g., tort) law in Europe (both the European Directive on the legal protection of databases of 1996, which was under review, and a number of relevant national laws), the United States, and a number of foreign jurisdictions (Australia, Canada, China, Nigeria, Russia, and Singapore). In Part III, the author provides a critical analysis of the effort to expand the legal protection of databases from both theoretical and empirical perspectives. In his conclusion, the author suggests three paths for the future evolution of the protection of databases at the international level

Transmissions of Music on the Internet: An Analysis of the Copyright Laws of Canada, France, Germany, Japan, the United Kingdom, and the United States

This Article examines the status of copyright laws in several countries as they pertain to transmissions of music on the Internet. Because the exact legal ramifications of music transmissions over the Internet are currently unclear, the Author compares copyright laws of six major markets and examines the potential application of the copyright laws and other rights that may apply. The Article also discusses rules concerning which transborder transmissions are likely to be covered by a country\u27s national laws, as well as specific rules applying to the liability of intermediaries. Next, the Article summarizes the comparative findings and discusses the relevant nuances that exist among the countries covered. Finally, the Article applies its findings to several real-life examples and details the practical impact of current and future copyright laws on the varying fact patterns

Electronic Rights Management and Digital Identifier Systems

The new world of digital information requires a new way of providing access to that information — while keeping the copyright backbone. It might be technically easier to create a digital infrastructure without copyright: Just throw works up on the Internet, and let anyone get to them for any purposes. But such systems have been suggested and roundly rejected by those who create and own works of value. So we need to build an electronic infrastructure that works with copyright and takes advantage of the digital environment. This paper looks at the attempts to build part of that infrastructure — the electronic copyright-management system — and analyzes their progress and success

Investor-State Dispute Settlement: Human Rights and Regulatory Lessons from Lilly v. Canada

The triangular interface between trade, intellectual property (IP) and human rights has yet to be fully formed, both doctrinally and normatively. Adding investor-state dispute settlement (ISDS) to the mix increases the complexity of the equations to solve. Two resultant issues are explored in this Article. First, the Article considers ways in which broader public policy objectives—in particular the protection of human rights—can and should be factored into determinations of whether a state’s action is compatible with its trade obligations and commitments in the state-to-state dispute settlement context. Second, the Article examines whether doctrinal tools used in state-to-state, trade-dispute settlement to make room for public interest considerations port to the investment/ISDS context. The Article uses the recent Lilly v. Canada case as backdrop to illustrate the points made. The Lilly case dealt with an ISDS complaint filed after the revocation of two Canadian patents on pharmaceutical products. The Article approaches the above-mentioned triangular interface from a policy perspective that factors in innovation and investment protection, but also public health, a policy area supported by a human right (to health), and in which states need regulatory autonomy

The Purpose of Copyright Law in Canada

IN THREE RECENT CASES, the Supreme Court of Canada provided several pieces of the Canadian copyright policy puzzle. We now know that the economic purpose of copyright law is instrumentalist in nature, namely, to ensure the orderly production and distribution of, and access to, works of art and intellect. The Court added that copyright can not enter carelessly into the private sphere of individual users. By targeting end-users in recent lawsuits, copyright holders have also found out that it is difficult to enforce a right that has not been properly internalized. After reviewing the Supreme Court trilogy of cases, the paper explores the importance of the moral imperative and the almost nonexistent role of Parliament in setting policy at the macro level. In Part 3, the paper proposes two concrete ways to align copyright law with its underlying purpose, especially on the internet. The first is to make existing rights easier to manage by facilitating collective management using the Extended Repertoire (or extended collective licensing system). A compatibility analysis with applicable international norms is provided. The second is a recasting of the copyright rights based on the effect of the use made of the work, not its technical nature

The Regulation of Inchoate Technologies

In this Essay, I explain why and how certain technologies I refer to as inchoate defeat regulatory interventions. I examine the law of unintended consequences and the role of regulatory ideologies. I suggest that traditional policymaking models, when applied to inchoate technologies, do not adequately reflect the risk of regulatory failure, which is proportional to the level of inchoateness of the technology. I also consider whether the regulation of inchoate technologies should take into account that, and may in fact be undesirable because, some technologies (or the use thereof) tend to self-regulate. Finally, I suggest lessons that can be drawn from this analysis and present the basic structure of an approach to the regulation of inchoate technologies