September 7, 2012
A Comparative Look at Employees' Intellectual Property Moral Rights
Shlomit Yanisky-Ravid, ONO Academic College, Yale Law School, Yale University Information Scoiety Project, has published Rethinking Employees' Intellectual Property Moral Rights: A New Model, in Intellectual Property: Interdisciplinary Perspective (Miriam Bitton and Lior Zemer, eds; 2012). Here is the abstract.
The article analyzes the subject of moral rights of employees. The article analyzes the approach currently used in the Anglo-American approach, which differs from the approach followed in France and Germany. As opposed to the law in France and Germany, which provides strong legal protection for moral rights in general, including those of employees, in the United States the law negates employees moral rights while in England moral rights of employees are limited. On the basis of this approach, Israel, for example, often does not recognize the moral rights of employees in practice even though the language of past and present copyright laws that allow granting moral rights to employees. These conclusions are consistent with judicial rulings in Israel on the subject. The article criticizes the practical negation of employees’ (creators and inventors) moral rights. The research proposals, for the first time, a new interpretation of the corpus of moral rights, which is different from the accepted interpretation in the various legal systems. According to our proposal, considering the complexity and uniqueness of labor relations – out of all the personal-moral rights comprising this corpus – the employee is entitled to a particularly strong attribution, which cannot be waived, and other “weaker” personal-moral rights. The right of attribution will obligate both the employer and third parties. The classical approach that justifies the attribution rights of creators are based on theories of the relationship between the creator and his personhood. This research presents a less common position that acknowledges economic justifications for granting the right of attribution (as a moral right) to employees from the perspective of the employee, the employer and the public. These include compensation for the monetary value of the attributed right, the motivational value of the right, attribution as a way of assigning responsibility (the disciplinary impact of the right), attribution as a way to create branding for products, attribution as a measure of quality, attribution as a way to humanize the employer’s IP products, attribution as the source of information about employees in relevant fields, attribution as a way to prevent deception and the educational value of the attribution of rights. Implementation of the model requires dismantling the dichotomous practice with regard to the corpus of moral rights. When considering labor relations, it appears that the right to attribution is a stronger right than the right of completeness. Maintaining the corpus as single cluster might negate its actual implementation for employees, as happens in the Anglo-American countries. The right of attribution ordinarily relates to creations. However, we propose expanding it to patent law and requiring it that patents be registered in the name of the inventor. This registration is practiced in the United States but not in Israel.
The full text is not available from SSRN. Download the abstract at the link.
September 5, 2012
Point of View Surveillance Under Australian Law
Roger Clarke, Xamax Consultancy Pty Ltd; University of New South Wales, Faculty of Law; Research School of Computer Science, has published The Regulation of Point of View Surveillance: A Review of Australian Law, as UNSW Law Research Paper No. 2012-37. Here is the abstract.
This paper presents the results of a review of contemporary regulatory controls on the use of Point of View Surveillance technologies under Australian law. Law enforcement agencies have considerable scope to apply them, whereas the rights of individuals are more circumscribed and less clear. Because of the technology's applicability to both sur- and sousveillance, a more balanced regulatory framework is necessary.
Download the paper from SSRN at the link.
Fallout From the NFL Lockout Litigation For the Entertainment Industry
Henry H. Perritt, Jr., Illinois Institute of Technology, Chicago-Kent College of Law, has published Competitive Entertainment: Implications of the NFL Lockout Litigation for Sports, Theatre, Music, and Video Entertainment, as a Chicago-Kent College of Law Research Paper. Here is the abstract.
The 2011 NFL lockout reveals profound changes in the labor and product markets for the entire entertainment industry, driven by a revolution in technology. This article explores the revolution in the professional sports, theatre, and movie-making industries and concludes that it is fragmenting production, blurring the boundaries between labor markets and product markets, and introducing new forms of competition. As a result, the labor exemptions to the antitrust laws, which featured prominently in the NFL controversy are becoming less relevant, shifting the law's policing of competition to antitrust rule-of-reason analysis, where counterpoises such as labor unions are inactive, and making overaggressive interpretation and enforcement of copyright law a major danger to realization of the new markets' potential.
Download the paper from SSRN at the link.
September 4, 2012
Ninth Circuit: No Immunity for Sheriff Arpaio on Some Claims Brought By Journalists
The Ninth Circuit has affirmed in part and reversed in part a lower court ruling in a case involving journalists from the Phoenix New Times, who allege that Sheriff Joe Arpaio and others engaged in malicious prosecution and other activities designed to prevent them from publishing articles critical of the sheriff and others involved in law enforcement in Maricopa County, Arizona. While the court denied the plaintiffs the opportunity to proceed on the malicious prosecution claim, it permitted them the opportunity to proceed on other claims. Wrote Judge Jay Bybee in conclusion for the majority:
For the foregoing reasons, we affirm the district court's decision to grant qualified immunity to Wilenchik and Arpaio on Lacey's malicious prosecution claims. We reverse the district court's grant of qualified immunity to Wilenchik and Arpaio as to Lacey's Fourteenth Amendment claims based on the First Amendment (retaliation), Fourth Amendment (false arrest), and Equal Protection Clause (selective prosecution). We reverse the dismissal with prejudice of the conspiracy claim against Thomas and remand with instructions to grant leave to amend on that claim. We affirm the district court's dismissal of the federal racketeering claims. We remand to the district court with instructions to reconsider the claims against Maricopa County and whether to exercise supplemental jurisdiction over the state law claims. Finally, we deny the defendants' motion to strike the portion of Lacey's reply brief that addresses Lacey's § 1983 conspiracy claim.