Friday, July 27, 2012
Nicole Van der Laan, Max Planck Institute for Intellectual Property and Competition Law, has published The Use of Trade Marks in Keyword Advertising - Developments in ECJ and National Jurisprudence, Property and Conduct: Convergences and Developments in IP, Unfair Conpetition and Publicity (Nari Lee, Guido Westkamp, Annette Kur, and Ansgar Ohly eds., Edward Elgar, 2012). Here is the abstract.
The use of trade marks in keyword advertising has been one of the ‘hottest’ issues in intellectual property law for several years. This entirely new way of using trade marks as a targeting tool has provoked a discussion concerning the core concepts of trade mark law. This chapter discusses the issues of ‘trade mark use’ (section 5), the likelihood of confusion test (section 6), the protected functions of a trade mark (section 7), the protection of reputable marks (section 8), and the limitations to trade mark rights (section 9) in the context of keyword advertising. First, this paper will illuminate the functioning of keyword advertising and the various interests at stake (section 2). Thereafter, the structure of Art 5 TMD, as well as the underlying rationales and policy concerns of trade mark law will be addressed (sections 3 and 4). In addition to trade mark law, unfair competition law issues will briefly be pointed out (section 10). Furthermore, a number of national court decisions applying the guidance provided by the ECJ will be analyzed (section 11). The chapter concludes by arguing an approach towards the use of trade marks in keyword advertising which takes into account the freedoms of information and competition and which focuses on the prevention of consumer confusion (section 12).
Download the essay from SSRN at the link.
Thursday, July 26, 2012
The UK advertising watchdog Advertising Standards authority has ruled that ads for the video game Call of Duty may not be aired during the day when children might be watching. The British Board of Film Classification had okayed it for young persons, but after receiving complaints, the ASA said the game contains violence and ads aired during daytime hours (that is, before 7:30 in the evening) and highlight that violence are inappropriate for young people. Here are excerpts from the ASA's ruling.
The ASA understood that the ad had been cleared with a scheduling restriction that meant it should not be broadcast in or adjacent to programmes commissioned for, principally directed at or likely to appeal particularly to persons below the age of 16 (an ex-kids restriction). We noted that the ad was broadcast at 2.30pm during a premier league football match and that audience index figures showed that a small proportion of viewers were children aged under 16. We also noted Activision's comment that the ad had been given a Parental Guidance (PG) certificate by the BBFC for in-store use, which meant that it had been rated as being suitable for general viewing, although some scenes may not be suitable for young children.
We noted the ad featured computer-generated scenes of warfare in various cities around the world. The ad contained scenes of extensive gunfire, explosions and destruction, and these scenes were accompanied by sound effects of weapons being fired, explosions and soldiers shouting. We also noted the ad featured music in the background which sounded like a low-pitched siren and which added to the dramatic nature of the scenes. We considered that the scenes of violence and destruction, together with the sound effects and music, could cause distress to some children who might see the ad. Although we noted that the ad was only shown during the football, we concluded that it was inappropriate for broadcast during the day when young children might be watching and the ex-kids restriction was insufficient. We considered a post 7.30pm restriction would have been more appropriate.
The ad breached BCAP Code rules 5.1 (Harm and offence) and 32.3 (Scheduling).
Wednesday, July 25, 2012
Natalia Cianfaglione, Boston University School of Law & Bard College, has published Hollywood Online: Fan Fiction, Copyright, and the Internet. Here is the abstract.
The Internet has allowed fan fiction to reach new heights. YouTube and similar technologies have allowed fans to engage in creative and massively shared interaction with copyrighted works of authorship. While all of this online fan activity reinforces the popularity and success of Hollywood franchises and arguably, provides the studios with valuable free advertising, fan fiction also raises a number of important copyright questions.
This paper explores the copyright issues involved in the creation of fan fiction. Using two case studies, this paper discusses the applicability of the fair use defense and the implied license defense to the most common types of fan fiction videos available on the Internet – parodies and mash-ups. Finally, this paper discusses the different responses from studios to these different types of fan created works, ranging from complete intolerance to any use of their copyrighted material to welcoming fan created work by providing a platform for fans to contribute their original ideas and content. Ultimately, this paper argues that these people, these fans who appropriate copyrighted content but transform it to pay homage to the franchises to which they are so devoted, should be protected by the fair use doctrine.
Download the paper from SSRN at the link.
Argyro Karanasiou, University of Leeds, has published Respecting Context: A New Deal for Free Speech in the Digital Era, in the European Journal of Law and Technology (2012). Here is the abstract.
This paper argues that our conventional approaches regarding the right to free speech seem outdated when applied online. While context plays a key part in free speech jurisprudence, law appears somehow non responsive to the digital context. To draw this conclusion, the free speech architecture of two jurisdictions is closely examined: Despite their ostensible differences, the First Amendment and the article 10 ECHR seem to have developed a common legal mechanism regarding the protective scope of the right to free speech.
In particular, they both define the right’s contours by adjusting its permissible limits within a given context. Ultimately, the two jurisdictions perform a balancing act in order to outline the level of protection reserved for this right. The paper traces and analyzes three of the most frequently evoked balancing parameters: space, property and state coercion. Eventually, it is demonstrated that all these three parameters are challenged in cyberspace; as a result they seem to be of little help for balancing online speech.
The paper therefore suggests adopting a new approach; digitizing our conventional human rights as the proper way of striking a fair balance for online free speech and ultimately placing rights in the appropriate context.
Download the article from SSRN at the link.
Tuesday, July 24, 2012
From the Hollywood Reporter: The cast of "Modern Family" has filed suit to void its contracts over the show in an attempt to end negotation over salary and other benefits and clean the slate. Renegotations have not been going well over the past weeks and the cast is not happy with the studio's offers which the cast thinks have been far below what should reflect 20th Century Fox is receiving in terms of profits and assumptions that the show will renew into an 8th and 9th season.
UK prosecutors will charge former News International exec Rebekah Brooks, former aide to David Cameron Andy Brooks, and several others with complicity in the phone hacking scandal that overtook News International's paper News of the World from 2003 to 2006. The Crown Prosecution Service made its announcement today. Others to be charged include Glenn Mulcaire, a private detective, who has already served served time in prison over another phone hacking affair, that of intercepting messages involving Clarence House, the official residence of the Prince of Wales.
FindLaw describes Harlequin's corporate practices, under fire by some romance authors who claim that Harlequin is using them to deprive the authors of royalties due under contract. According to the authors, Harlequin set up two Swiss entities and routed business to them to enable the parent company to pay the writers substantially less in royalties. More here from Bloomberg Businessweek, which also discusses a lawsuit brought by the writers.
Donald P. Harris, Temple University School of Law, is publishing The New Prohibition: A Look at the Copyright Wars Through the Lens of Alcohol Prohibition in the University of Tennessee Law Review. Here is the abstract.
Over the past decade, copyright holders and content providers have increased legislative and judicial protection for copyrighted works and have concurrently increased enforcement efforts. Much of this has been directed at curbing massive filesharing. Despite the tremendous amount of resources expended in such efforts, filesharing continues at unabated and never before seen levels. Filesharing continues and enforcement efforts has failed because neither the laws nor the copyright industry’s efforts take into account the immense resistance and civil disobedience engendered by efforts to prevent a considerable segment of society from recognizing the reality of the Internet. Moreover, such enforcement efforts also fail to address the evolving nature of copyright. Rather than continuing to impose on society laws that society feels are both unjust and illegitimate, new copyright laws much reflect current societal morals and norms. These current norms suggest that filesharing is here to stay. As such, this Article offers a different look at the controversy surrounding the filesharing.
This Article argues that legislators, commentators, and the copyright industry must entertain laws that embrace filesharing, and seek other ways to incentivize artists and other creators. The Article traces Alcohol Prohibition of the 1920s and 1930s as an historical example of laws that were inconsistent with the vast majority of society’s morals and norms. Looking back, one can see many similarities between the Alcohol and Filesharing Prohibitions. The Article suggests, then, that lessons learned from the failed “noble experiment” of Alcohol Prohibition should be applied to the current filesharing controversy. Doing so, the Article advocates legalizing certain noncommercial filesharing. A scheme along these lines will comport with societal norms and will force new business models to replace outdated and ineffective business models.
Download the article from SSRN at the link.
Monday, July 23, 2012
The Guardian reports that Rupert Murdoch has resigned from his position as a director at News International, which owns numerous papers, including the Times of London and the Sun. News International recently announced it would split into two companies, a news company and an entertainment company. Analysis here from Dan Sabbagh.
Patrick Joseph Charles, Gonzaga University School of Law, has published The Second World War and Legal Publishing Advertisements. Here is the abstract.
The Second World War was a total war in its scale and scope and every aspect of civilian life was affected. The American legal system was greatly transformed by the conflict and legal publishing changed significantly. This article includes several advertisements from American legal periodicals and bar association publications between 1941 and 1945 that included World War ll themes.
Download the paper from SSRN at the link.
Chris Edelson, American University, has published Lies, Damned Lies, and Journalism: Why Journalists are Failing to Vindicate First Amendment Values and How a New Definition of 'The Press' Can Help. Here is the abstract.
This article identifies a specific problem – journalists who fail to provide the public with the accurate information needed to foster informed public opinion – and offers a specific solution: defining “the press” to provide protections and prestige only to those whose work actually advances First Amendment values.
American journalistic norms facilitate lying by politicians, candidates for office, and other public figures. Because many journalists are committed to the ideal of balance over truth, they are often incapable of calling out lies. Instead, they create a false equivalence by suggesting there are two sides to every argument, even when one side is demonstrably false. Politicians and other public figures are able to exploit this reality by making false statements with impunity, secure in the knowledge that journalists will not expose their deceptions.
Scholars like Robert C. Post, Paul Horwitz, Mark Tushnet and others have recently focused on the questions of whether false statements contain constitutional value and when false statements may be regulated by the government. Although Post’s recent book, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State, does not focus on the problem of false statements disseminated by journalists, his concept of democratic competence is especially relevant to the problem of the balance trap. By extending press membership only to those journalists whose work advances First Amendment values of truth and democratic competence, we can move toward a press corps that truly informs the public by providing accurate information and exposing false statements by elected officials and other public figures. This approach does not depend on suppressing any speech: by turning to the Press Clause, it is possible to advance democratic competence simply by redefining the press, meaning that only competent journalists will receive the status and protections associated with press membership, while other journalists will be free to practice balance trap journalism but will be denied press status.
Changing the way journalists do their work depends on a new definition of the press. Other scholars have defined the press in institutional (Schauer, Horwitz) or functional (West) terms, but, while these definitions identify a number of important considerations, each deals far too often in abstractions, failing to consider the work journalists are actually doing and whether their work merits press status. As a result, each definition is both over- and under-inclusive, providing press membership to balance trap journalists and denying press membership to some journalists who recognize and reject the balance trap approach.
This article does something new by putting forward a definition of the press that is based on specific examples of work journalists are doing, and proposing a way to assess whether this work advances First Amendment values of truth and democratic competence. In addition, while other scholars who believe that the press deserves specific protection seek to establish the basis for that protection solely or mainly through courts or legislatures, this article does something new by identifying a central role for journalists themselves in the process.
Ultimately, the goal of this article is to give meaning to Oliver Wendell Holmes’s assertion that “the real justification of a rule of law is that it helps to bring about a social end which we desire.” Replacing balance trap journalism with journalism that gives Americans the accurate information they need to make informed decisions is a highly desirable social end. If we want to have a better press corps, we must begin with a definition of the press that has the potential to solve the balance trap problem by recognizing only members of the press whose work truly advances First Amendment values.
Download the paper from SSRN at the link.