Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, October 10, 2016

Liebenau on What Intellectual Property Can Learn From Online Privacy, and Vice Versa

Diana Liebenau, Harvard Law School and Ludwig Maximilian University of Munich, is publishing What Intellectual Property Can Learn from Online Privacy, and Vice Versa in volume 30 of the Harvard Journal of Law & Technology. Here is the abstract.

On the one hand, we resort to intellectual property (IP) theory to justify a certain IP right or calibrate how a specific IP rule should be. Most commonly, we differentiate between three main theories: personhood, labor, and welfare, occasionally supplemented by interdisciplinary approaches. Some scholars portray these theories as categorically different; the traditional fault line runs between European-style deontological justifications based on Hegelian personhood or Lockean labor theories, and US-style utilitarian welfare theory. Others perceive their overall prescriptive power as limited. On the other hand, privacy law is also governed by theories defining, justifying and calibrating it. However, the theoretical backdrop is much more disaggregate: descriptive taxonomies compete with normative theories, of which no single classification appears to be universally accepted. In this Note, we will distinguish between three widely recognized theories of informational privacy which conceptualize privacy as control, limited access, and contextual integrity, respectively. But are there theories to analyze both IP and privacy? Intuitively, scholars have made a variety of arguments based on a structural parallelism of privacy and IP. Scholarship has also carefully dissected situations with converging or conflicting interests between IP and privacy. But these accounts are selective and do not rely on a common theory. Another line of scholarship uses the theories of IP in order to argue in favor of a property-style right in privacy interests. Apart from that, very few theoretical accounts use theories of IP address the privacy implications of IP. In contrast, this Note takes another path by proposing to apply to IP the three commonly accepted theories of privacy — control, limited access, and contextual integrity. Both IP and privacy law regulate the flow of information, and thus control thereof, access thereto, and context therein. To be sure, these theories on the flow of information do not “justify” IP. However, through this theoretically informed prism of structural parallelism of privacy and IP some murky policy questions become clearer, so that IP can draw lessons from online privacy, and conversely, online privacy can learn from IP.

The full text is not available from SSRN.

October 10, 2016 | Permalink

Friday, October 7, 2016

Bailey and Burkell on Revisiting Presumptive Accessibility: Reconceptualizing the Open Court Principle in an Era of Online Publication

Jane Bailey, University of Ottawa, Common Law section, and Jacquelyn Burkell, University of Western Ontario, Faculty of Information and Media Studies, have published Revisiting Presumptive Accessibility: Reconceptualizing the Open Court Principle in an Era of Online Publication as Ottawa Faculty of Law Working Paper No. 2016-31. Here is the abstract.

The meaning of and purpose behind the open court principle have expanded and shifted over time. Currently in Canada the adherence to the principle has meant presumptive access to almost all aspects of court cases, including access to personal information about parties and witnesses. Historically, notwithstanding this presumptive access, practical obscurity has protected much of this information, in that most people will not trouble themselves to physically attend court offices in order to review records filed there. However, continuing a policy of presumptive access could have devastating effects on privacy as court records move online. Unfettered online access removes the inconveniences and personal accountability associated with gaining physical access to paper records, thereby opening up sensitive personal information to the voyeuristic gaze of the public. We take the position that in this context, presumptive accessibility jeopardizes the fundamental human right to privacy without substantially contributing to the underlying values of the open court principle: transparency and access to justice. As such, we argue that mechanisms to reintroduce friction into the process of gaining access to personal information ought to be taken to rebalance the public interest in open courts with the public interest in the protection of privacy.

Download the article from SSRN at the link.

October 7, 2016 | Permalink

Tuesday, October 4, 2016

Blevins on the FCC and the "Pre-Internet"

John Blevins, Loyola University (new Orleans) College of Law, has published The FCC and the 'Pre-Internet' at 91 Ind. L.J. 1309 (2016). Here is the abstract.

Network neutrality has dominated broadband policy debates for the past decade. While important, network neutrality overshadows other policy levers that are equally important to the goals of better, cheaper, and more open broadband service. This lack of perspective has historical precedent — and understanding this history can help refocus today’s policy debate. In the 1960s and 1970s, telephone companies threatened the growth of the nascent data industry. The FCC responded with a series of rulemakings known as the “Computer Inquiries” proceedings. In the literature, Computer Inquiries enjoys hallowed status as a key foundation of the Internet’s rise. This Article, however, argues that Computer Inquiries is less important than it seems. A series of lesser-known FCC proceedings was more important to the development of the “pre-Internet” — a term I use to describe the ancestral data networks that ultimately evolved into the Internet. When viewed in historical context, Computer Inquiries did not create growth, but instead reflected the growth that the pre-Internet proceedings had already unleashed. Computer Inquiries, however, contributed to the pre-Internet in other ways that the literature overlooks. Specifically, it became a crucial source of information that influenced the more important pre-Internet proceedings. Understanding how the FCC helped build the pre-Internet also provides important lessons for today’s modern policy debates. One implication is that today’s open Internet depended not upon “light touch” restraint, but upon aggressive regulatory enforcement over many years. It also illustrates how the current policy debate focuses too narrowly on network neutrality rules to the exclusion of other proceedings and policy levers that can construct a larger “habitat” of innovation.

Download the article from SSRN at the link.

October 4, 2016 | Permalink

Kahn on Three First Amendment Puzzles Raised By the Police Union Response to Speech Criticizing Police Conduct in Ferguson and NYC

Robert A. Kahn, University of St. Thomas School of Law (Minnesota), is publishing Three First Amendment Puzzles Raised by the Police Union Response to Speech Criticizing Police Conduct in Ferguson and New York City in the 2017 volume of the Alabama Civil Rights & Civil Liberties Law Review. Here is the abstract.

In December 2014 the St. Louis Police Officers Association called on the NFL to fine five St. Louis Rams players who entered the game against the visiting Oakland Raiders in the “Hands up, don’t shoot” posture. A few days later, Patrick Lynch of the New York Patrolmen’s Benevolent Association threatened a slow down after New York City Mayor Bill de Blasio suggested that his mixed-race son Dante needed to take special care when dealing with the police. In this essay, I conclude that these responses, while formally protected by the First Amendment, are out of character with the tolerant society the First Amendment has created in other areas of American life. In particular, police unions are (i) too ready to jump into free speech controversies, (ii) too sensitive when it comes to insulting speech, and (iii) too wedded to an ineffectual patrolling of false narratives, one more prevalent in Europe, where many countries punish genocide denial, than in the United States, which is much more reluctant to assume speech is harmful merely because it is false. From a broader perspective, these incidents raise questions about the extent to which the First Amendment is genuinely colorblind.

Download the abstract from SSRN at the link.

October 4, 2016 | Permalink

Bhagwat on Justice Scalia and the Clear Articulation of Legal Rules

Ashutosh Avinash Bhagwat, University of California, Davis - School of Law, is publishing Free Speech and 'a Law of Rules' in the First Amendment Law Review. Here is the abstract.

In 1989, Justice Antonin Scalia published an essay in The University of Chicago Law Review titled “The Rule of Law as a Law of Rules.” The essay sets forth, and defends, one of the primary jurisprudential themes of Justice Scalia’s three decades as a Supreme Court Justice: the need for and obligation on judges, especially Supreme Court Justices, to articulate clear rules in resolving cases, rather than relying on vague balancing or multifactor tests. Or alternatively, as no one but Justice Scalia could have put it, the essay explains why throughout his career Justice Scalia opposed “the’ol’ totality-of-the-circumstances test” under which “[t]he law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be.” Justice Scalia’s commitment to clear rules over mushy standards is as important an element of his First Amendment jurisprudence as of his administrative law and separation-of-powers opinions (the sources of the earlier quotes). It was, for example, undoubtedly the driving force behind his majority opinion in Employment Division v. Smith, severely limiting the scope of the Free Exercise Clause, and in Brown v. Entertainment Merchants Association, extending full First Amendment protection to the sale of violent video games to children. And there are many other examples. Generally, a commitment to clear rules is a good thing, especially in the area of free speech where vague standards risk chilling protected speech. However, this article identifies some unexpected barriers to the “law of rules” approach. The reason, essentially, is that simple rules can very easily lead to unacceptable results. Faced with such results, a justice committed to clear rules might be pushed to adopt complex, arbitrary ones, even irrational ones, to avoid them. The result is epicycles within epicycles. My intention is to demonstrate that in at least some areas – notably sexually oriented expression, hate speech, and government funding of speech– this is precisely where Justice Scalia ended up. The problem is that an excessively complex body of rules, such as I identify, sacrifices many of the most powerful advantages that rules enjoy over standards. I finish by speculating as to why Justice Scalia had such a difficult time formulating clear rules in the free speech arena, concluding that the likely reason is that unlike in many other areas of jurisprudence, Justice Scalia lacked an underlying theory of how and why we protect free speech. Workable, clear rules, I conclude, need an underlying theoretical scaffolding. Absent that, ad hocery is inevitable — a point that Justice Scalia may well have recognized, and been the reason why he wrote so few free speech opinions in comparison to other areas of constitutional jurisprudence.

Download the article from SSRN at the link.

October 4, 2016 | Permalink

Monday, October 3, 2016

Marmor on Two Rights of Free Speech: The Right to Speak and the Right to Hear

Andrei Marmor, Cornell University Law School, has published Two Rights of Free Speech as Cornell Legal Studies Research Paper No. 6-37. Here is the abstract.

My main argument in this paper is that the right to freedom of expression is not a single right, complex as it may be, but spans two separate rights that I label the right to speak and the right to hear. Roughly, the right to speak stands for the right of a person to express freely whatever they wish to communicate to some other persons or to the public at large. The right to hear stands for the right to have free and unfettered access to any kind of content that has been communicated by others. The right to speak and the right to hear are two separate rights, grounded in different kinds of interests. Choice and control are central aspects of the right to speak and much less central to the right to hear. I try to show that this division of rights and their respective rationales can be utilized to explain how we think about some of the limits of the right to freedom of expression, particularly in the context of conflicts between the right to speak and the right to hear, conflicts that are rather pervasive. I also argue, though perhaps less conclusively, that in thinking about the limits of freedom of expression, an exclusive focus on the harm principle would be misguided. There is no reason to deny that speech is often harmful, sometimes very much so, but the prevention of harm is not sufficient to justify legal prohibition, at least not in this case.

Download the article from SSRN at the link.

October 3, 2016 | Permalink

Thursday, September 29, 2016

Garon on Television's Early Transformation from Medium to Genre

Jon Garon, Shepard Broad College of Law, is publishing Hidden Hands that Shaped the Marketplace of Ideas: Television's Early Transformation from Medium to Genre in volume 19 of the University of Denver Sports and Entertainment Law Journal (2016). Here is the abstract.

In a few decades from the beginning of national radio broadcasts to the Post-War cultural explosion, artists, politicians, lawyers, and spies forged the Golden Age of Television. Conflicting pressures of media censorship, modernist design, American hegemony, expressionist art, anti-communist legislation, and TV ownership limitations clashed and reshaped the cultural identity of the American viewer. These forces competed for dominance, shaping the content, empowering new producers, and setting new standards for artist and viewer alike. Studies on the broadcast industry marketplace assessed the efficiency of broadcast licensing but failed to identify either the influences or goals of the emerging television market. This article develops the origins of television from its beginning in radio and film innovations. It then chronicles the surprising influences of modern art as part of the government's strategy to address Cold War concerns. Cold War politics, nascent marketing strategies, and cutthroat business practices combined to shape the Golden Age of Television. This article adds a legal and business commentary to television's early engagement with expressionist art and the risk-taking in the dynamic new medium.

Download the article from SSRN at the link.

September 29, 2016 | Permalink

Adler on Fair Use and the Future of Art

Amy Adler, New York University School of Law, is publishing Fair Use and the Future of Art in volume 91 of the New York University Law Review (2016). Here is the abstract.

Twenty-five years ago, in a seminal article in the Harvard Law Review, Judge Leval changed the course of copyright jurisprudence by introducing the concept of “transformativeness” into fair use law. Soon thereafter, the Supreme Court embraced Judge Leval’s new creation, calling the transformative inquiry the “heart of the fair use” doctrine. As Judge Leval conceived it, the purpose of the transformative inquiry was to protect the free speech and creativity interests that fair use should promote by offering greater leeway for creators to build on preexisting works. In short, the transformative standard would ensure that copyright law did not “stifle the very creativity which that law [was] designed to foster.” This Article shows that the transformative test has not only failed to accomplish this goal; the test itself has begun to “stifle the very creativity which that law was designed to foster.” In the realm of the arts, one of the very areas whose progress copyright law is designed to promote, the transformative standard has become an obstacle to creativity. Artistic expression has emerged as a central fair use battleground in the courts. At the same time that art depends on copying, the transformative test has made the legality of copying in art more uncertain, leaving artists vulnerable to lawsuits under a doctrine that is incoherent and that fundamentally misunderstands the very creative work it governs. The transformative test has failed art. This Article shows why and what to do about it, turning to the art market itself as a possible solution to the failure of the transformative use test.

Download the article from SSRN at the link.

September 29, 2016 | Permalink

Tuesday, September 27, 2016

Aplin on Filling the IP Gap: Privacy and Tabloidism

Tanya Aplin, King's College London, is publishing Filling the IP Gap: Privacy and Tabloidism, in Research Handbook on Intellectual Property in Media and Entertainment (M. Richardson and S. Ricketson eds., Edward Elgar, 2016). Here is the abstract.

This chapter examines how confidential information and trade secrets is used to combat privacy intrusions by tabloid media. It examines the genesis and scope of the English tort of misuse of private information, the extent to which this action overlaps with breach of confidence and the impact of trade secret protection on privacy.

Download the essay from SSRN at the link.

September 27, 2016 | Permalink

Worthy @benworthy1 on Freedom of Information and the Media

Ben Worthy, University of London, Birkbeck College, has published Freedom of Information and the Media. Here is the abstract.

The media are a powerful constituency of users, lobbyists and defenders of Freedom of Information (FOI) laws. This chapter examines how journalists use the laws in the UK and work to protect and extend it. It also looks at how media use is seen to damage trust in the political system and can generate resistance from government. It ends by arguing that FOI must be viewed in context and now fits within a rapidly changing information eco-system and a shifting and hybrid media environment.

Download the article from SSRN at the link.

September 27, 2016 | Permalink

Thursday, September 22, 2016

Buccafusco @cjbuccafusco and Sprigman @CJSprigman on the Empirical Testing of IP Law's Foundations

Christopher Buccafusco, Cardozo Law School, and Christopher Jon Sprigman, New York University School of Law, are publishing Experiments in Intellectual Property in 2 Research Handbook on the Economics of Intellectual Property Law (Peter Menell & David Schwartz, eds., Edward Elgar Publishing, 2016). Here is the abstract.

Perhaps more than any other area, intellectual property (IP) law is grounded in assumptions about how people behave. These assumptions involve how creators respond to incentives, how rights are licensed in markets, and how people decide whether to innovate or borrow from the culture and technologies that they see around them. Until recently, there had been little effort to validate any of these assumptions. Fortunately, the last decade has witnessed significant interest in empirically testing IP law’s foundations. This Chapter discusses the use of experimental and survey methods to understand how various features of copyright and patent law affect behavior. These methods are a valuable addition to the empirical toolkit, because they allow researchers to ask and answer questions that are not generally possible to approach with other empirical strategies. We first discuss some of the advantages of using experimental research. Then we highlight some of the findings that this research has produced in the copyright and patent fields thus far. Finally, we explore a variety of methodological issues that experimental researchers face.

Download the essay from SSRN at the link.

September 22, 2016 | Permalink

King on the Right of Publicity for Tattoo Copyrights

Yolanda King, Northern Illinois University College of Law, is publishing The Right-of-Publicity Challenges for Tattoo Copyrights in volume 16 of the Nevada Law Journal (Spring 2016). Here is the abstract.

This Article is the third and final piece of a series of articles that examine the applicability of intellectual property law to tattoos. The second article in the series, The Enforcement Challenges for Tattoo Copyrights, concluded that copyright owners can and should enforce their rights against users outside of the tattoo artist-customer relationship. This Article explores a different source of intellectual property protection for tattoos: the right of publicity. As tattooing has become increasingly prevalent among celebrities, tattoos have become “one” with the persona of the tattoo bearer. A tattoo that carries the meaning of a celebrity tattoo bearer serves as indicia of that celebrity’s identity. The Article proposes that when a tattoo becomes associated with the meaning of a celebrity’s identity, rather than solely retaining the message of the tattoo itself, the tattoo moves beyond mere protection under copyright law and acquires additional protections under the right-of-publicity laws. This transformation of intellectual property rights is the subject of the Article. Right-of-publicity laws exist in more than thirty of the states in the United States, in common law, by statute, or both. Therefore, assuming a state recognizes the right of publicity, and even if a celebrity (1) owns the identity at issue (validity) and (2) shows unauthorized third-party use of the identity in a way that is harmful to the commercial value of the identity (infringement), the claim may conflict with First Amendment interests. This Article also considers the various tests employed by courts to accommodate the conflicting interests of the First Amendment and the right of publicity. The Article endorses the Predominant Use test, which properly recognizes the prevalence of mixed commercial and expressive uses for tattoos.

Download the article from SSRN at the link.

September 22, 2016 | Permalink

McGettigan on Lukianoff's "Unlearning Liberty"

Timothy McGettigan, Colorado State University, Pueblo, has published Survival of the Fittest Ideas: The Enduring Importance of Free Speech on Campus. Here is the abstract.

In Unlearning Liberty (2012 - Encounter Books), Greg Lukianoff has published a timely and provocative analysis of contemporary threats to freedom of speech at US colleges and universities. Lukianoff is a First Amendment attorney, and he is also the President of the Foundation for Individual Rights in Education (FIRE). Thus, Lukianoff makes it abundantly clear that there is hardly anyone who is better qualified to author this book.

Download the review from SSRN at the link.

September 22, 2016 | Permalink

Wednesday, September 21, 2016

Jackson on Freedom of Speech Under Assault on Campus

Daniel Jackson, Department of Philosophy, University of Michigan, Ann Arbor, has published Freedom of Speech Under Assault on Campus as Cato Institute Policy Analysis No. 796. Here is the abstract.

Freedom of speech has been severely criticized at many American universities. Meanwhile, such prestigious transnational institutions as the United Nations and the European Union have endorsed censorship of hate speech, as well as denial of Holocaust and climate change, and even blasphemy. Those trends are antithetical to classically liberal ideals about both the freedom of speech and the purpose of the university. John Stuart Mill thought higher education should not tell us what it is our duty to believe, but should “help us to form our own belief in a manner worthy of intelligent beings.” He added that “there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine,” regardless of its falsity, immorality, or even harmfulness. The classical liberal argument for free speech has historically been championed in two distinct ways. First, the Founding documents of the United States recognize freedom of speech as a natural right. Second, alternatively, that right might be grounded in utility, meaning its acceptance best promotes human flourishing. Ironically, the very trends on campus that threaten freedom of speech also lend strong support to both justifications for it.

Download the paper from SSRN at the link.

September 21, 2016 | Permalink

Tuesday, September 20, 2016

Sag @matthewsag on Copyright's Digital/Analog Divide

Matthew Sag, Loyola University Chicago School of Law, has published Copyright's Digital/Analog Divide. Here is the abstract.

This Article shows how the substantive balance of copyright law has been overshadowed online by the system of intermediary safe harbors enacted as part of the Digital Millennium Copyright Act (“DMCA”) in 1998. The Internet safe harbors and the system of notice-and-takedown fundamentally changed the incentives of platforms, users, and rightsholders in relation to claims of copyright infringement. These different incentives interact to yield a functional balance of copyright online that diverges markedly from the experience of copyright law in traditional media environments. This article also explores a second divergence: the DMCA’s safe harbor system is being superseded by private agreements between rightsholders and large commercial Internet platforms made in the shadow of those safe harbors. These agreements relate to automatic copyright filtering systems, such as YouTube’s Content ID, that not only return platforms to their gatekeeping role, but encode that role in algorithms and software. The normative implications of these developments are contestable. Fair use and other axioms of copyright law still nominally apply online; but in practice, the safe harbors and private agreements made in the shadow of those safe harbors are now far more important determinants of online behavior than whether that conduct is, or is not, substantively in compliance with copyright law. The diminished relevance of substantive copyright law to online expression has benefits and costs that appear fundamentally incommensurable. Compared to the offline world, online platforms are typically more permissive of infringement, and more open to new and unexpected speech and new forms of cultural participation. However, speech on these platforms is also more vulnerable to over-reaching claims by rightsholders. There is no easy metric for comparing the value of non-infringing expression enabled by the safe harbors to that which has been unjustifiably suppressed by misuse of the notice-and-takedown system. Likewise, the harm that copyright infringement does to rightsholders is not easy to calculate, nor is it easy to weigh against the many benefits of the safe harbors. DMCA-plus agreements raise additional considerations. Automatic copyright enforcement systems have obvious advantages for both platforms and rightsholders; they may also allow platforms to be more hospitable to certain types of user content. However, automated enforcement systems may also place an undue burden on fair use and other forms of non-infringing speech. The design of copyright enforcement robots encodes a series of policy choices made by platforms and rightsholders and, as a result, subjects online speech and cultural participation to a new layer of private ordering and private control. In the future, private interests, not public policy will determine the conditions under which users get to participate in online platforms that adopt these systems. In a world where communication and expression is policed by copyright robots, the substantive content of copyright law matters only to the extent that those with power decide that it should matter.

Download the article from SSRN at the link.

September 20, 2016 | Permalink

Buccafusco @cjbuccafusco on a Theory of Copyright Law

Christopher Buccafusco, Cardozo School of Law, has published A Theory of Copyright Authorship at 102 Virginia Law Review 1229 (2016). Here is the abstract.

The U.S. Constitution gives Congress the power to grant rights to “Authors” for their “Writings.” Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This article articulates and defends a theory of copyrightable authorship. It argues that authorship involves the intentional creation of mental effects in an audience. A writing, then, is any fixed medium capable of producing mental effects. According to this theory, copyright may attach to the original, fixed, and minimally creative form or manner in which an author creates mental effects. After setting out the theory, this article applies it to a series of current copyright disputes. My authorship theory both expands and contracts the scope of potentially copyrightable works. Some media that have previously been excluded from copyright law, such as gardens, cuisine, and tactile works, now fall within the constitutional grant of rights. By contrast, aspects of copyrightable works, including photographs, taxonomies, and computer programs, may not constitute copyrightable authorship. This theory resolves a number of current and recent copyright cases, and it offers a new approach to the emerging challenges associated with artificial intelligence, the Internet of things, and, ultimately, the impending revision of the Copyright Act.

Download the article from SSRN at the link.

September 20, 2016 | Permalink

Wu on Collaborative Academic Library Digital Collections Post-Cambridge University Press, Hathitrust, and Google Decisions on Fair Use

Michelle M. Wu, Georgetown University Law Center, is publishing Collaborative Academic Library Digital Collections Post- Cambridge University Press, Hathitrust and Google Decisions on Fair Use in volume 1 of the Journal of Copyright in Education and Librarianship (2016). Here is the abstract.

Academic libraries face numerous stressors as they seek to meet the needs of their users through technological advances while adhering to copyright laws. This paper seeks to explore one specific proposal to balance these interests, the impact of recent decisions on its viability, and the copyright challenges that remain after these decisions.

Download the article from SSRN at the link.

September 20, 2016 | Permalink

Monday, September 19, 2016

Bridy @AnnemarieBridy on the Evolution of Authorship: Work Made By Code

Annemarie Bridy, University of Idaho College of Law; Stanford University Center for Internet and Society, is publishing The Evolution of Authorship: Work Made by Code in volume 39 of the Columbia Journal of Law & the Arts (2016). Here is the abstract.

This short article — a transcript of remarks from the Kernochan Center’s fall 2015 symposium, “Copyright Outside the Box” — considers whether U.S. copyright law requires human authorship as a precondition for protection of an artistic work. Tracing the surprisingly long history of copyright law’s grappling with the status of computer-generated works, I ask whether the increasing sophistication and independence of generative code should cause us to rethink embedded assumptions in the law about the meaning and origin of creativity and authorship. Because copyright law already accommodates non-human authors (i.e., corporations) through the work made for hire doctrine, I argue here (revisiting my 2012 article Coding Creativity) that recognition of AI authorship may be a less profound doctrinal leap than it may seem. Other countries already protect works generated autonomously by computers. In the United States, we can decide for policy reasons that machine-authored works should not be protected by copyright, but that choice is not inevitable given the current state of the law both here and abroad.

Download the essay from SSRN at the link.

September 19, 2016 | Permalink

Rosen on Common Law Copyright

Zvi S. Rosen, George Washington School of Law, is publishing Common Law Copyright in the University of Cincinnati Law Review. Here is the abstract.

Sound recordings made before 1972 are governed by a confusing array of state-law protections, the most notable of these being common law copyright. Although frequently treated as a pre-publication version of statutory copyright, common law copyright has less in common with statutory copyright than is generally assumed, and these differences have real effects on copyright holders and broadcasters. This piece aims to take the measure of common-law copyright and demonstrate that it is a substantially broader doctrine than statutory copyright in terms of what rights it grants to creators. Particular attention is paid to the right of public performance at common-law, which does not obey statutory limitations but instead offers blanket protection to rights holders.

Download the article from SSRN at the link.

September 19, 2016 | Permalink

Friday, September 16, 2016

Michael Geist On the CRTC and the CanCon Rules

Michael Geist, professor at the University of Ottawa School of Law and noted scholar in the area of IP and telecommunications law, discusses what's been going on with regard to rules concerning Canadian content in Canadian broadcasting rules. More here.

September 16, 2016 | Permalink