Goodbye to All That--A Reluctant (and Perhaps Premature) Adieu to a Constitutionally-Grounded Discourse of Public Interest in Copyright Law

In this Article, Professor Jaszi suggests that there is a need to develop new, policy-grounded arguments against expansionist legislative and judicial tendencies in copyright that diminish the traditional public domain. In recent years, he contends, a new understanding of the purposes of a copyright system has emerged, which has changed the U.S. copyright discourse in support of increased proprietary rights. According to Professor Jaszi, the objective of this new understanding is to improve the competitive position of companies that have significant investments in Inventories of copyrighted works. Recognizing the Uruguay Round Amendments Act (URAA) as an episode in this new process of copyright revision, Professor Jaszi uses a framework of constitutional analysis to review some of the various justifications posited for the most controversial URAA features--the copyright restoration for works of Berne Convention and World Trade Organization origin and anti-bootlegging provisions. Considering the newly emerging understanding of the essential terms of the Patent and Copyright Clause of the U.S. Constitution, it is possible, he argues, to justify, based on constitutionally-grounded reasoning, the URAA provisions and other innovations in copyright, including copyright justification for works of domestic U.S. origin. Professor Jaszi concludes that it is incumbent upon those who value the public domain to develop new ways of explaining how and why the maintenance of an intellectual commons matter

Traditional Culture: A Step Forward for Protection in Indonesia

Traditional Culture: A Step Forward for Protection in Indonesia is the culmination of research conducted as part of a group of scholars, journalists, and observers of the arts who made multiple trips to Central Java and Bali to look at the practice of certain “traditional” arts. These arts—Javanese wayang kulit, gamelan music, and batik, and Balinese dance, gamelan music, and ikat—have, like most Indonesian arts, historically operated without Intellectual Property (IP) regulation. Professor Jazsi met with artists, performers, and creators to discuss their concerns regarding the current state of their arts, and to explore possibilities for attribution and compensation for their work. The report discusses existing Indonesian intellectual property law and means by which traditional artists could make more effective use of this law and makes recommendations concerning potential law reform proposals designed to benefit traditional artists and their communities. This work was generously supported by a grant from the Ford Foundation

Code of Best Practices in Fair Use for OnLine Video

Until the release of these best practices, anyone uploading a video ran the risk of becoming inadvertently entangled in an industry skirmish, as media companies struggle to keep their programs from circulating on the internet. This document is a code of best practices created by a collaborative team of media scholars and lawyers, to help creators, online providers, copyright holders, and others interested in the making of online video, interpret the copyright doctrine of fair use in online video. The code identifies, among other things, six kinds of unlicensed uses of copyrighted material that may be considered fair, under certain limitations

Code of Best Practices in Fair Use for OnLine Video

Until the release of these best practices, anyone uploading a video ran the risk of becoming inadvertently entangled in an industry skirmish, as media companies struggle to keep their programs from circulating on the internet. This document is a code of best practices created by a collaborative team of media scholars and lawyers, to help creators, online providers, copyright holders, and others interested in the making of online video, interpret the copyright doctrine of fair use in online video. The code identifies, among other things, six kinds of unlicensed uses of copyrighted material that may be considered fair, under certain limitations

Untold Stories in South Africa: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers

This report summarizes research on the perceptions of South African documentary filmmakers about copyright clearance requirements and the effect of such requirements on their work. This work was performed in the context of a larger project exploring how lessons learned from “best practices” projects with documentary filmmakers in the U.S. can help their counterparts in other countries identify and overcome barriers to effective film making posed by escalating copyright clearance requirements

The Statute of Anne: Today and Tomorrow

This essay provides the epilogue to the University of Houston’s Institute for Intellectual Property & Information Law’s 2010 National Conference, “The ©©© Conference: Celebrating Copyright’s tri-Centennial,” in Santa Fe, New Mexico. The conference focused on the Statute of Anne, the first copyright statute ever, anywhere, enacted by the British Parliament in 1710.Copyright law in the United States, the lineal descendant of the Statute of Anne, has managed to negotiate a course between over-protecting and under-protecting copyrighted matter, and to strike at least a rough balance between the social interest in securing capital investment, on the one hand, and encouraging both innovation and free expression, on the other. What may the future hold?To enable speculation about the answer to that question, the essay imagines a Rip Van Winkle of copyright law, who dozed off in 1710 and has just re-awoken. The three centuries just past surely would provide our sleeper a rude awakening to the many changes occasioned by human creativity and technological change.Perhaps, due to those same factors plus internationalization, the future eventually will bring about copyright’s demise, or at least the passing of U.S. copyright law as we have known it. Yet the authors dare to hope that this unique, if peculiar, body of law will continue in the future, as it has in the past, to discharge its ancient calling: to balance proprietary right and public access for the greater good of society

The Statute of Anne: Today and Tomorrow

This essay provides the epilogue to the University of Houston’s Institute for Intellectual Property & Information Law’s 2010 National Conference, “The ©©© Conference: Celebrating Copyright’s tri-Centennial,” in Santa Fe, New Mexico. The conference focused on the Statute of Anne, the first copyright statute ever, anywhere, enacted by the British Parliament in 1710.Copyright law in the United States, the lineal descendant of the Statute of Anne, has managed to negotiate a course between over-protecting and under-protecting copyrighted matter, and to strike at least a rough balance between the social interest in securing capital investment, on the one hand, and encouraging both innovation and free expression, on the other. What may the future hold?To enable speculation about the answer to that question, the essay imagines a Rip Van Winkle of copyright law, who dozed off in 1710 and has just re-awoken. The three centuries just past surely would provide our sleeper a rude awakening to the many changes occasioned by human creativity and technological change.Perhaps, due to those same factors plus internationalization, the future eventually will bring about copyright’s demise, or at least the passing of U.S. copyright law as we have known it. Yet the authors dare to hope that this unique, if peculiar, body of law will continue in the future, as it has in the past, to discharge its ancient calling: to balance proprietary right and public access for the greater good of society

Clinical Legal Education and the Public Interest in Intellectual Property Law

Clinical legal education provides a powerful methodology for students to learn about the relationships among intellectual property law theories, policies and practices; to encounter the experiences of persons who seek protection or who feel the legal regimes of intellectual property impinging on their ability to engage in educational, creative, innovative and culturally significant work; and to develop as lawyers. We describe in this article our motivations for forming an intellectual property law clinic at the American University Washington College of Law, the goals that we seek to achieve, and the tripartite pedagogical structure that we adopted - (1) a seminar built around a year-long simulation that addresses multiple lawyering skills and legal practice settings, (2) a wide variety of live-client student representations performed under close faculty supervision, and (3) weekly case rounds discussions focusing on public interest issues experienced directly by the students in their representations. We provide an example of a particular student representation that illustrates some of the benefits of our clinical model for teaching students about the public interest and intellectual property law doctrines within the framework of teaching about lawyering. We conclude with our reflections on student experiences and the ability of our clinical program to teach intellectual property law and lawyering in concrete factual and policy contexts, helping students better understand the interaction of theory, doctrine and practice in shaping the meaning and consequences of intellectual property regimes. Students came to understand law and lawyering and to see ways to shape their lives as lawyers, through analyzing and evaluating their responses to the interests of their clients, their actions in meeting the demands of a case, their understanding of the relationships among doctrinal areas, and the connection of their activities to the public interest

Clinical Legal Education and the Public Interest in Intellectual Property Law

Clinical legal education provides a powerful methodology for students to learn about the relationships among intellectual property law theories, policies and practices; to encounter the experiences of persons who seek protection or who feel the legal regimes of intellectual property impinging on their ability to engage in educational, creative, innovative and culturally significant work; and to develop as lawyers. We describe in this article our motivations for forming an intellectual property law clinic at the American University Washington College of Law, the goals that we seek to achieve, and the tripartite pedagogical structure that we adopted - (1) a seminar built around a year-long simulation that addresses multiple lawyering skills and legal practice settings, (2) a wide variety of live-client student representations performed under close faculty supervision, and (3) weekly case rounds discussions focusing on public interest issues experienced directly by the students in their representations. We provide an example of a particular student representation that illustrates some of the benefits of our clinical model for teaching students about the public interest and intellectual property law doctrines within the framework of teaching about lawyering. We conclude with our reflections on student experiences and the ability of our clinical program to teach intellectual property law and lawyering in concrete factual and policy contexts, helping students better understand the interaction of theory, doctrine and practice in shaping the meaning and consequences of intellectual property regimes. Students came to understand law and lawyering and to see ways to shape their lives as lawyers, through analyzing and evaluating their responses to the interests of their clients, their actions in meeting the demands of a case, their understanding of the relationships among doctrinal areas, and the connection of their activities to the public interest

Evaluating the Benefits of Fair Use: A Response to the PWC Report on the Costs and Benefits of 'Fair Use'

This submission to the Australia Productivity Commission responds to a recently published PricewaterhouseCoopers report on Understanding the Costs and Benefits of Introducing a ‘Fair Use’ Exception, prepared for APRA, AMCOS, PPCA, Copyright Agency | Viscopy, Foxtel, News Corp Australia and Screenrights (“PWC Report”). The PWC Report does not provide a sound evidence base to evaluate the true total costs and benefits that the introduction of a fair use rights would have in Australia. Part I points out how the PWC Report fails to adequately define the nature of the real change being proposed in Australia – which is effectively to subject its existing fair dealing clause to an open list of potentially lawful purposes. Part II provides a survey of a range of benefits that the opening of Australia’s fair dealing clause to resemble the U.S. fair use doctrine may have, drawing from published research on the topic which is not canvassed by the PWC Report. Part III analyses the PWC Report’s evaluation of the costs of adopting fair use, criticizing the Report’s basis for concluding that adopting fair use will lead to massive shifts from licensed to unlicensed use of works, a litigation explosion and the destruction of all collective management organizations in Australia. The diffuse and forward-looking benefits of open exceptions like fair use may be hard to measure, but they are no less real. The PWC’s evaluation of the costs and benefits of fair use are not real. It is full of imagined horror stories that are unlikely to take place in fact and should be disregarded in their entirety