Download or read book Constitutionalizing Intellectual Property written by Uday Shankar (Assistant professor) and published by . This book was released on 2013 with total page 176 pages. Available in PDF, EPUB and Kindle. Book excerpt:

Download or read book Global Intellectual Property Protection and New Constitutionalism written by Jonathan Griffiths and published by Oxford University Press. This book was released on 2022-02-14 with total page 401 pages. Available in PDF, EPUB and Kindle. Book excerpt: The constitutionalization of intellectual property law is often framed as a benign and progressive integration of intellectual property with fundamental rights. Yet this is not a full or even an adequate picture of the ongoing constitutionalization processes affecting IP. This collection of essays, written by international experts and covering a range of different areas of intellectual property law, takes a broader approach to the process. Drawing on constitutional theory, and particularly on ideas of "new constitutionalism", the chapters engage with the complex array of contemporary legal constraints on intellectual property law-making. Such constraints arising in international intellectual property law, human rights law (including human rights protection for right-holders), investment treaties, and forms of private ordering. This collection aims to illuminate the complex role of this constitutional framework, by analysing the overlaps, complementarities, and conflicts between such forms of protection and seeking to establish the effects that this assemblage of global and regional norms has on legal reform projects and interpretations of IP law. Some chapters take a broad theoretical perspective on these processes. Others focus on specific situations in which the relationship between intellectual property law and broader constitutional norms is significant. These contexts range from Art 17 of the EU's Digital Single Market Directive, to the implementation of harmonized trade secrets protection, from the role of Canada's Charter of Rights to the impact of the social model of property in Brazil.

Download or read book Rethinking Intellectual Property written by Gustavo Ghidini and published by Edward Elgar Publishing. This book was released on 2018 with total page 416 pages. Available in PDF, EPUB and Kindle. Book excerpt: Intellectual property law is built on constitutional foundations and is underpinned by the twin freedoms of freedom of expression and freedom of economic enterprise. In this thoughtful evaluation, Gustavo Ghidini offers up a reconstruction of the core features of each intellectual property paradigm, including patents, copyright, and trademarks, suggesting measures for reform to allow intellectual property to become socially beneficial for all.

Download or read book No Law written by David L. Lange and published by Stanford University Press. This book was released on 2008-10-27 with total page 613 pages. Available in PDF, EPUB and Kindle. Book excerpt: The original text of the Constitution grants Congress the power to create a regime of intellectual property protection. The first amendment, however, prohibits Congress from enacting any law that abridges the freedoms of speech and of the press. While many have long noted the tension between these provisions, recent legal and cultural developments have transformed mere tension into conflict. No Law offers a new way to approach these debates. In eloquent and passionate style, Lange and Powell argue that the First Amendment imposes absolute limits upon claims of exclusivity in intellectual property and expression, and strips Congress of the power to restrict personal thought and free expression in the name of intellectual property rights. Though the First Amendment does not repeal the Constitutional intellectual property clause in its entirety, copyright, patent, and trademark law cannot constitutionally license the private commodification of the public domain. The authors claim that while the exclusive rights currently reflected in intellectual property are not in truth needed to encourage intellectual productivity, they develop a compelling solution for how Congress, even within the limits imposed by an absolute First Amendment, can still regulate incentives for intellectual creations. Those interested in the impact copyright doctrines have on freedom of expression in the U.S. and the theoretical and practical aspects of intellectual property law will want to take a closer look at this bracing, resonant work.

Download or read book The Constitutionalization of Intellectual Property Law in the EU and the Funke Medien Pelham and Spiegel Online Decisions of the CJEU written by Christophe Geiger and published by . This book was released on 2020 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: In the first part of the new millennium, the rise of the use of fundamental rights in shaping and using intellectual property norms has led one of the authors of this article to predict that this movement will be “constitutionalizing” intellectual property law. More than a decade and a half later, the influence of fundamental rights on the scope and limitations of intellectual property has never been more important, as illustrated by three seminal copyright decisions (in the Funke Medien, Pelham and Spiegel Online cases) delivered in July 2019 by the Court of Justice of the European Union. These decisions, dealing with the relationship between copyright and freedom of expression (including freedom of the media, information, and freedom of artistic creativity), stand out in the European judicial practice on copyright and fundamental rights for a number of reasons. First, freedom of expression and its balancing factors play a crucial role in shaping the contours of the exclusive rights, starting from the definition of copyright law's subject-matter and extending to the right of reproduction, as well as, most importantly - to copyright limitations and exceptions. In essence, the CJEU takes a quite liberal position towards the national courts' interpretation of existing copyright norms in the light of the freedom of expression requirements. The CJEU goes even as far as to term the Article 5 InfoSoc exceptions not as “exceptions” as such but as self-sufficient rights of users of copyright-protected subject-matter. It is also notable that, in applying freedom of expression to EU copyright, the CJEU has largely relied on the case law of yet another supranational European court - the European Court of Human Rights - manifesting eagerness to engage in a “dialogue” with the principal human rights tribunal in Europe in order to establish guiding principles for EU copyright law informed by freedom of expression. Such a liberal, “freedom of expression-driven” approach of the CJEU to the interpretation of EU copyright appears quite analogue in results that could be reached by applying an external and/or open-ended copyright exceptions. Nevertheless, the Luxemburg Court indicates in Funke Medien, Pelham and Spiegel Online that an externally-introduced flexibility (by means of complementing an already existing in EU list of exceptions) could be harmful to copyright harmonisation and legal certainty. Therefore, despite having shown a more favourable position to the possibility of shaping EU copyright by fundamental rights norms, the CJEU does not go all the way, since it considers in quite categorical terms that an external freedom of expression exception beyond an exhaustive list of limitations of Article 5 InfoSoc is clearly inacceptable. According to the Court, copyright's own internal mechanisms present sufficient safety valves for balancing with freedom of expression. Such position of the CJEU that relies on the fact that the legislator has anticipated all the potential conflicts between copyright and higher ranking norms such as fundamental rights might be incompatible with the EU legal order. Thus, despite a visible progress in flexibilizing copyright norms via their interpretation “in the light of” fundamental rights, some further steps will still need to be taken in the future to make the “constitutionalization” of IP law a complete reality in the EU.

Download or read book The Constitutional Foundations of Intellectual Property written by Randolph J. May and published by . This book was released on 2015 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: Protection of intellectual property (IP) rights is indispensable to maintaining a vibrant economy, especially in the digital age as creativity and innovation increasingly take intangible forms. Long before the digital age, however, the U.S. Constitution secured the IP rights of authors and inventors to the fruits of their labors. The essays in this book explore the foundational underpinnings of intellectual property that informed the Constitution of 1787, and it explains how these concepts informed the further development of IP rights from the First Congress through Reconstruction. The essays address the contributions of figures such as John Locke, George Washington, James Madison, Thomas Jefferson, Noah Webster, Joseph Story, Daniel Webster, and Abraham Lincoln to the development of IP rights within the context of American constitutionalism. Claims that copyrights and patents are not property at all are in fashion in some quarters. This book''s essays challenge those dubious claims. Unlike other works that offer a strictly pragmatic or utilitarian defense of IP rights, this book seeks to recover the Constitution''s understanding of IP rights as ultimately grounded in the natural rights of authors and inventors. "A fascinating, illuminating and insightful exploration of the roots of intellectual property law in America. Essential for students, teachers and practitioners in the field. Intellectually sound and highly readable." -- Theodore Olson, Solicitor General of the United States, 2001-2004 "The current proposals for copyright and patent reform are often stated in an impatient manner, as if there were only one side to a difficult problem. It is therefore refreshing to have this book by Randolph May and Seth Cooper that offers a careful and instructive exploration of the larger natural law foundations of modern intellectual property law and shows how the traditional concerns of the natural lawyers lend added weight to the soundness of the current IP system." -- Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law "Given the importance of the protection of intellectual property rights to our nation''s economy and to innovation and investment, this book addressing the constitutional foundations and philosophical underpinnings of IP rights provides a valuable antidote to the all too prevalent and damaging populist view that ''information wants to be free.''" -- Robert Atkinson, President, Information Innovation & Technology Foundation "I loved the book, and I hope it finds a large audience. Over the years, I''ve had many people tell me my interpretation of the Constitution''s Intellectual Property Clause was wrong. Hopefully, this new book by Randolph May and Seth Cooper, with its scholarly yet highly readable treatment, will refocus the debate about IP rights on first principles and our Founders'' intentions." -- Marybeth Peters, Register of Copyrights of the United States, 1994-2011 "This is an essential volume for anyone who cares about the Constitution and intellectual property. The Framers thought intellectual property was important enough to provide for its protection expressly in the Constitution. This book provides invaluable insights into the Framers'' decision and should inform contemporary debates about the nature of that protection." -- Paul Clement, Solicitor General of the United States, 2005-2008 "Randolph May and Seth Cooper have authored a welcome addition to the literature on intellectual property rights. Well-researched and clearly written, this book provides an invaluable historical perspective that will contribute significantly to the ongoing debates about the conceptual underpinnings of copyright and patent law." -- Cary Sherman, Chairman and CEO of RIAA "Finally, two talented authors add intellectual heft to the ongoing debate about the true nature of copyright--as an exclusive private property right, or as a limited right to be doled out stingily, riddled with exceptions and limitations, to be given away free-of-charge. It has become fashionable in some academic circles to treat copyright exclusivity as a quaint but outmoded notion, and its advocates as hopeless naïfs. But Mr. May and Mr. Cooper, by going back to first principles and natural rights, show us that an exclusive property right is at the heart of copyright protection. Their learned analysis should be widely read, especially by Members of Congress and judges, to help them understand the true nature of the debate and the deep roots of the copyright pedigree as a natural private property right--historically unique, socially revolutionary, and worth fighting for. Three cheers for Messrs. May and Cooper!" -- Ralph Oman, Register of Copyrights of the United States, 1985-1993 "The natural rights approach that May and Cooper take has not disappeared entirely from copyright discourse these days. One hears hints of it in court opinions and policy statements, and a few intrepid academics write from such a perspective, including, for example, Adam Mossof and Mark Schultz, who are mentioned in the book''s acknowledgements. But May and Cooper have written a thorough recitation of how copyright is justified under a natural rights theory and how that justification is reflected in US law--and a project of such scope is increasingly rare...May and Cooper have contributed an excellent primer on the natural rights justification for intellectual property rights in the US and its reflection in the Constitution and early American jurisprudence." -- Terry Hart, Copyhype "May and Cooper''s book is written by academics for academics, though it is entirely accessible to any reader, if constitutional scholarship on intellectual property is your cup of post-revolutionary tea, so to speak." -- David Newhoff, The Illusion of More

Download or read book Eldred and Lochner written by Paul M. Schwartz and published by . This book was released on 2015 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: Since the ratification of the constitution, intellectual property law in the United States has always been, in part, constitutional law. Among the enumerated powers that Article I of the Constitution vests in Congress is the power to create certain intellectual property rights. To a remarkable extent, scholars who have examined the Constitution's Copyright Clause have reached a common position. With striking unanimity, these scholars have called for aggressive judicial review of the constitutionality of congressional legislation in this area. The champions of this position - we refer to them as the IP Restrictors - represent a remarkable array of constitutional and intellectual property scholars. In this terms's Eldred v. Aschroft, leading IP Restrictor Lawrence Lessig, representing petitioner Eric Eldred, sought to convince the Supreme Court that the IP Restrictors' view of the Copyright Clause was the correct one. By a vote of 7-2, the Supreme Court rejected Eldred's claim and upheld the statute. But while the Court rejected the IP Restrictors' vision, it did not offer a satisfactory competing conception of the Copyright Clause and how the courts should construe it. Critically, even though the standard of review was of central significance, the Court applied a deferential form of rational basis scrutiny without explaining why this was the appropriate standard. This paper develops the case for deferential review of congressional legislation in the area of intellectual property and, at a deeper level, offers a new paradigm for understanding the Copyright Clause. We propose that from the vantage point of constitutional law, intellectual property should be treated as a form of constitutional property. Deference to congressional judgments is warranted because congressional legislation affecting intellectual property is analytically similar to congressional legislation affecting other forms of property. Courts subject congressional legislation affecting traditional forms of property to deferential review because of concerns about institutional competence and respect for majoritarian decisionmaking. These two concerns in conjunction with proper regard for holistic constitutional interpretation should also lead courts to deferential review of congressional legislation affecting intellectual property. In developing our position, we draw on constitutional history and, in particular, the lessons of Lochner v. New York. In defense of their vision of the Constitution, the IP Restrictors and the dissenters in Eldred make claims about the original understanding that, to an astonishing extent, echo those made by proponents of Lochner-era jurisprudence. We argue, however, that these claims fail for two reasons. First, the IP Restrictors and the dissenters disregard the limited scope of judicial review at the time of the Founding. Additionally, the IP Restrictors and dissenters disregard the range of views among the Founders about monopolies.

Download or read book Global Intellectual Property Protection and New Constitutionalism written by Jonathan Griffiths and published by . This book was released on 2021 with total page 400 pages. Available in PDF, EPUB and Kindle. Book excerpt: This collection of essays, written by international experts and covering a range of different areas of intellectual property law, draws on constitutional theory, and particularly on ideas of 'new constitutionalism', to engage with the complex array of contemporary legal constraints on intellectual property law-making.

Download or read book Sovereign Immunity and the Protection of Intellectual Property written by United States. Congress. Senate. Committee on the Judiciary and published by . This book was released on 2003 with total page 98 pages. Available in PDF, EPUB and Kindle. Book excerpt:

Download or read book Copyfraud and Other Abuses of Intellectual Property Law written by Jason Mazzone and published by Stanford Law Books. This book was released on 2011-10-05 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: Intellectual property law in the United States does not work well and it needs to be reformed—but not for the reasons given by most critics. The issue is not that intellectual property rights are too easily obtained, too broad in scope, and too long in duration. Rather, the primary problem is overreaching by publishers, producers, artists, and others who abuse intellectual property law by claiming stronger rights than the law actually gives them. From copyfraud—like phony copyright notices attached to the U.S. Constitution—to lawsuits designed to prevent people from poking fun at Barbie, from controversies over digital sampling in hip-hop to Major League Baseball's ubiquitous restriction on sharing any "accounts and descriptions of this game," overreaching claims of intellectual property rights are everywhere. Overreaching interferes with legitimate uses and reproduction of a wide variety of works, imposes enormous social and economic costs, and ultimately undermines creative endeavors. As this book reveals, the solution is not to change the scope or content of intellectual property rights, but to create mechanisms to prevent people asserting rights beyond those they legitimately possess. While there are many other books on intellectual property, this is the first to examine overreaching as a distinct problem and to show how to solve it. Jason Mazzone makes a series of timely proposals by which government, organizations, and ordinary people can stand up to creators and content providers when they seek to grab more than the law gives them.

Download or read book The Constitutional Invasion of Intellectual Property Law written by Howard P. Knopf and published by . This book was released on 1991 with total page 84 pages. Available in PDF, EPUB and Kindle. Book excerpt:

Download or read book The Framing of the Constitution s Intellectual Property Clause written by Dotan Oliar and published by . This book was released on 2007 with total page 311 pages. Available in PDF, EPUB and Kindle. Book excerpt:

Download or read book Intellectual Property and Immorality written by Ned Snow and published by Oxford University Press, USA. This book was released on 2021 with total page pages. Available in PDF, EPUB and Kindle. Book excerpt: "This book argues that certain intellectual creations should not receive copyright or patent protection because they are harmful to society. It posits that the theories of intellectual property and the Intellectual Property Clause of the U.S. Constitution suggest this conclusion. The book responds to counterarguments: namely, that denying protection might increase the output of objectionable works, that other laws should address the moral problems; and that intellectual property functions better under a laissez-faire approach. After responding to these arguments, the book considers the roles of government actors in denying protection. It argues that courts should exercise their powers of equity to deny relief for works that are connected to unlawful acts of the rights-holder, and that courts should exercise their constitutional powers to deny protection for specific categories of harmful expressions and inventions. Next, the book considers whether Congress has constitutional authority to deny protection for works that it considers to be immoral. In concluding that Congress does have such authority, the book sets forth specific criteria that Congress should apply in exercising its moral discretion. Finally, the book considers whether denying intellectual property protection on moral grounds would violate the Free Speech Clause of the First Amendment. It concludes that principles of free speech afford Congress considerable discretion to deny patent protection but only narrow discretion to deny copyright protection. It also concludes that the Free Speech Clause is consistent with judicial denial of protection for the limited categories of works that fall outside the Intellectual Property Clause"--

Download or read book Constitutional Analysis of Intellectual Property written by AJ. van der Walt and published by . This book was released on 2014 with total page 35 pages. Available in PDF, EPUB and Kindle. Book excerpt: This article analyses the Constitutional Court's treatment of property interests in the face of state regulation to gain an understanding of the type of state interference that is justifiable in terms of section 25(1) of the Bill of Rights. This is done by examining the Constitutional Court's dicta relating to the meaning of deprivation and how these inform the meaning of property in the constitutional context. The methodology that the Constitutional Court has formulated to assess if state interference complies with the provisions of section 25 is explained to show the type of state regulation that has been found legitimate. We then consider how this understanding of constitutional property and the state's legitimate exercise of its inherent police power interact in the setting of intellectual property by contrasting the various policy objectives underlying the different statutory regimes governing intellectual property. This theoretical analysis is then applied to two contemporary examples of feasible state interference with existing intellectual property interests, namely the proposed plain packaging measures which severely restrict the use of tobacco trade marks, and a fair dealing exception allowing the use of copyright works for the purpose of parody. These examples serve to illustrate the context and manner in which intellectual property interests may come before the Court and the necessary differentiation with which these interests should be treated. The appropriate judicial assessment of the true impact that state action could have on vested property interests is explained and contrasted with the balancing exercise that is employed at the earlier stage of policy making. This discussion is concluded by highlighting some of the interpretational issues that will arise and how some constitutional values could be curtailed in the absence of legislative intervention.

Download or read book An Intellectual Property Law Primer written by Earl W. Kintner and published by . This book was released on 1982 with total page 584 pages. Available in PDF, EPUB and Kindle. Book excerpt: Study commenting on patent law and judicial decisions relating to intellectual property rights in the USA - examines protection procedures for patents, trade secrets, knowhow, trade marks, copyright, public performances (performers) and commercial publicity; discusses income tax on intellectual property. Bibliography.

Download or read book Intellectual Property and New Constitutionalism written by Tuomas Mylly and published by Edward Elgar Publishing. This book was released on 2013-10-01 with total page 280 pages. Available in PDF, EPUB and Kindle. Book excerpt: Intellectual Property and New Constitutionalism is one of the first critical accounts of the constitutionalization of European and international IP law. It posits that IP laws have begun to create their own internal tests and supernorms with constitutional functions. Such norms are intended to protect exclusive rights against experienced threats, including traditional constitutional law. Citing examples such as the three-step test of international and European IP law, competition norms of the TRIPS Agreement and the inclusion of IP in the EU Charter of Fundamental Rights, the author questions the idea that all constitutionalization of IP is benevolent, and identifies some of the means by which this development can be checked.

Download or read book The Constitutional Convention on IP written by Dotan Oliar and published by . This book was released on 2011 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: All have thus far considered the Constitutional Convention's record on intellectual property puzzling and uninformatively short. This Article revisits that conventional wisdom. Using various methods of analysis, including a statistical hypotheses test, it solves historical puzzles that have long accompanied the events at the Convention leading to the framing of the IP Clause, and shows that hitherto neglected portions of the Framers' debates are relevant to interpreting it. Its findings shed light on four unsettled questions of constitutional interpretation: they provide qualified support for the constitutionality of business method patents, patents for products of nature, and copyright protection for unoriginal factual compilations, and suggest that the IP Clause should be read as one unit rather than two distinct and independent powers for copyrights and patents.