Intellectual Property and Indigenous Peoples: Adapting Copyright Law to the Needs of a Global Community

The definition and scope of intellectual property and associated laws are under intense debate in the emerging discourse surrounding intellectual property and human rights. These debates primarily arise within the context of indigenous peoples\u27 rights to protection and ownership of culturally specific properties. It is true that intellectual property laws are based on Western, developed markets, Western concepts of creation and invention, and Western concepts of ownership. But whatever their origins, those laws have been, and currently are, the primary vehicle for the protection of artistic, literary, and scientific works worldwide. To segregate indigenous interests from this international legal regime, particularly in light of the increasing globalization of markets, is to deny indigenous peoples both a powerful legal shield and a powerful legal sword. This Article argues that copyright laws can, and must, be expanded so as to maintain the vitality of, and protect, the creative artistic and literary works of indigenous cultures. The article proposes three major changes to international copyright law: the incorporation of collective and communal notions of authorship, the expansion of the originality requirement to reflect these forms of authorship, and the application of limits on the duration of copyright protection in a broader community context. The article further proposes that a variety of intellectual property mechanisms be drawn upon to provide special protection for “sacred” cultural works

Will Work\u27: The Role of Intellectual Property in Transitional Economies -- From Coal to Content

The development and exploitation of intellectual property, and participation in the global information economy, are not dependent upon geography. It can take place from anywhere, from the inside of an empty factory in Detroit, to a small country road, nestled between the rhododendron and the river. From the R&D lab at a university, to a barren plain in New Mexico. To move from coal to content, we must foster a dynamic and profitable environment for entrepreneurship, through a supportive and robust university community, through state legislation and institutional support and through effective utilization of intellectual property laws. Intellectual property and technology can be used in transitional economies to create meaningful opportunities for young people to live and to work in their communities, to make efficient use of their own resources. This issue spans art and science, business and industry, culture and environment. Twin-pops and telephones. Intellectual property can help people use traditional resources in the new economy -- the art, the music, the know-how -- and to cultivate human knowledge and creation in a manner that benefits these communities across the country. This is the American story, too - to create wealth from within. To \u27Will Work\u27

Contextual Healing: What to Do About Scandalous Trademarks and Lanham Act 2(a)

Offensive trademarks have come to the forefront of trademark policy and practice in recent years. While it was once true that more attention had been paid to Lanham Act section 2(a) in the pages of law reviews than in the courts, recent prominent cases have focused attention on the ban on registration of offensive marks and the widespread impact of this ban on trademark owners. In this Article, I answer the fundamental question: Given the problems that my previous research has identified, what should be done about the 2(a) bar on registration of scandalous trademarks? This Article argues, as a preliminary matter, that the registration bar on scandalous marks should be removed from the Lanham Act because morality is outside the function and purpose of trademark law. Furthermore, removal of the bar would be in line with other forms of intellectual property, which have moved away from regulating morality. Finally, removing the bar would resolve concerns about the constitutionality of section 2(a). However, if the 2(a) bar remains part of the Lanham Act, it should be applied in a way that is fair and effective within in the legal framework of trademark law. Specifically, this Article argues that trademark examiners should evaluate offensiveness in the same way other bars to registration — and content in broadcast media — are evaluated: by considering the context of the marketplace

NSFW: An Empirical Study of Scandalous Trademarks

This project is an empirical analysis of trademarks that have received rejections based on their “scandalous” nature. It is the first of its kind. The Lanham Act bars registration for trademarks that are “scandalous” and “immoral.” While much has been written on the morality provisions in the Lanham Act, this piece is the first scholarly project that engages an empirical analysis of the Section 2(a) rejections based on scandalousness; it contains a look behind the scenes at how the morality provisions are applied throughout the trademark registration process. This study analyzes which marks are being rejected, what evidence is being used to reject them, and who the applicants are. Our data pays particularly close attention to the evidence used to determine whether a mark is scandalous. We also consider whether this bar is effective at removing these marks from the consumer marketplace

Calling Bulls**t on the Lanham Act: The 2(a) Bar for Immoral, Scandalous, and Disparaging Marks

As the Lanham Act approaches the age of 65, it is a good time to take stock of its application to, and place within, the object and purpose of trademark law. Trademark law seeks to promote fair competition by reducing consumer search costs and preventing confusion in the minds of consumers as to the source of goods and services. However, Section 2(a) of the Lanham Act prevents registration of marks that are “immoral,” “scandalous,” “disparaging,” “deceptive,” or which “create a false association” with persons, institutions, beliefs, or national symbols. The 2(a) bar expands trademark law well beyond its basic goals. While a bar to registration for marks that are deceptive or create a false association is related to the overall object and purpose of trademark law, we argue that the bar to registration for marks that are immoral, scandalous, or disparaging is not, and that the 2(a) bar is — both in definition and application — ineffective, inconsistent, and vague, and that it should be removed from the Lanham Act

Trademarks and Human Rights: Oil and Water - Or Chocolate and Peanut Butter

In recent years, there has been a growing discourse at the intersection of intellectual property and human rights. Whether there is a direct connection between intellectual property, or the subjects of intellectual property, on the one hand, and human rights, on the other, has been the subject of lively debate. Most recently, the discussion has turned to the field of trademarks, which has prompted the question, Are trademarks human rights? In this article I seek to explore this question, and to consider directly whether there is a proper place for trademarks within the human rights framework-whether trademarks and human rights are immiscible, like oil and water, or whether they are a great combination that creates a whole that is bigger than the sum of its parts, like chocolate and peanut butter. The analysis begins with a discussion of human rights generally, both as those rights are defined and as they are realized within an overarching legal structure. Next, I examine the inclusion of intellectual property rights within international human rights instruments and explore the dimensions of implementation and interpretation of intellectual property rights pursuant to those instruments. I conclude that, in contrast to copyrights and patent rights, trademark rights are not the types of rights that are considered to be human rights per se. The third part of the analysis discusses the inclusion of intellectual property within the property rights provisions of the European Convention of Human Rights and Fundamental Freedoms. Under the jurisprudence of the European Court, intellectual property rights fall squarely within the parameters of property rights, and a recent opinion by the Grand Chamber makes clear the inclusion of trademark registrations and applications within that property right. The fourth part examines the human right to property, including how that right has developed in both breadth and depth over time. Next, I examine trademark rights as property rights, and consider the question, Are trademark rights property rights within United States trademark law? While historically there has been great resistance to defining trademark rights as a form of property right, I posit that this recalcitrance has grown out of both a misconception of the nature of property rights and a lack of recognition of the nature of trademark rights in relation to other forms of property rights. In the last part, I conclude that trademarks, while not human rights per se, can be human rights insofar as they exist as a form of property right, and caution that to the extent that trademark rights are viewed from the lens of human rights, they must be balanced with other rights as well, such as the right to culture

Bare Justice: A Feminist Theory of Justice and Its Potential Application to Crimes of Sexual Violence in Post-Genocide Rwanda

Within this Article I seek to develop a feminist legal theory of justice, by questioning the ability of traditional legal strategies to facilitate justice and identifying underlying principles that contribute to a more inclusive and holistic form of justice. Secondly, I apply this theory to the situation of women victims of sexual violence in post-genocide Rwanda, in an effort to explore how these principles can contribute to a realization of justice that empowers women. In Part II of this Article, I seek to develop a set of principles underlying a feminist reconceptualization of justice. This endeavour is a three-step process: First, I seek to provide an historical context and perspective on the ideological and organizational tenets of feminist legal theory as such can contribute to the (re)construction of an inclusive, diverse, vital form of justice. Secondly, I hold current legal operatives, particularly criminal procedure and rules of evidence, to the light of scrutiny for masculine universals and feminine specificities, as those laws are embodied as such in substance and form. Thirdly, using a variety of branches of feminist theory, I discuss alternative ways of thinking about legal regimes in the interest of seeking a more feminist, inclusive, diversified, and vital conceptualization of justice. I conclude this Part with the identification of five principles that serve as the foundation for a feminist theory of justice. In Part III of this Article, I apply these principles to the situation of women victims of sexual violence committed during the genocide in Rwanda. The analysis begins with a discussion of what is, in fact, the situation of women victims of sexual violence in Rwanda. Such discussion includes a brief history of genocidal events, particularly those related to the commission of crimes of systematic sexual violence, and an abbreviated discussion of the development of crimes of sexual violence in international law. In the third section of Part III, I apply the five foundational principles to specific legal structures and operatives in post-conflict Rwanda. This application seeks to engage a critical analysis of how these structures and operatives do or do not contribute to justice for women victims of sexual violence

Intellectual Property Law and Indigenous Peoples: Adapting Copyright Law to the Needs of a Global Community

The definition and scope of intellectual property and associated laws are under intense debate in the emerging discourse surrounding intellectual property and human rights. These debates primarily arise within the context of indigenous peoples\u27 rights to protection and ownership of culturally specific properties. It is true that intellectual property laws are based on Western, developed markets, Western concepts of creation and invention, and Western concepts of ownership. But whatever their origins, those laws have been, and currently are, the primary vehicle for the protection of artistic, literary, and scientific works worldwide. To segregate indigenous interests from this international legal regime, particularly in light of the increasing globalization of markets, is to deny indigenous peoples both a powerful legal shield and a powerful legal sword. This Article argues that copyright laws can, and must, be expanded so as to maintain the vitality of, and protect, the creative artistic and literary works of indigenous cultures. The article proposes three major changes to international copyright law: the incorporation of collective and communal notions of authorship, the expansion of the originality requirement to reflect these forms of authorship, and the application of limits on the duration of copyright protection in a broader community context. The article further proposes that a variety of intellectual property mechanisms be drawn upon to provide special protection for “sacred” cultural works

If It’s Broke, Fix It: Fixing Fixation

The fixation requirement, once an intended instrument for added flexibility in copyrightability, has become an unworkable standard under modern copyright law. The last twenty-five years have witnessed a dramatic expansion in creative media. Developments in both digital media and contemporary art have challenged what it means to be fixed, and cases dealing with these works reveal how inapposite current interpretations of fixation are for these forms of expression. Yet, getting fixation “right” is important, for it is often the juridical threshold over which idea becomes expression. Thus, we must enable fixation to help define the parameters of creative expression while not discriminating against dynamic and digital works