Journal of Intellectual Property Rights Vol 16, January 2011, pp 38-48

LITERATURE REVIEW
IPR General The TRIPS Agreement: Helping or hurting least developed countries' access to essential pharmaceuticals? Mellino Marla L, Fordham Intellectual Property, Media & Entertainment Law Journal, 20 (4) (2010) 1349-1388. This note analyses the options currently available through TRIPS for transfer of pharmaceutical technology to LDCs, how effective these options are, and what should be done in the long term to help ease the public health problems worldwide. Part I provides a background on the TRIPS Agreement and its relevant declaration and decisions relating to public health. Parts II and III analyse the conflict that exists between the uniform intellectual property rights that TRIPS promotes and the LDCs lack of access to lifesaving treatments, despite the public health provisions. Part IV argues first, that current TRIPS public health measures are not sufficient to solve the problem of access to essential pharmaceuticals in the long term because the conflict mentioned above will always remain. Second, it argues that mechanisms like public-private entities should be utilized to solve the problem instead. The innovationeconomic growth nexus: Global evidence, Hasan Iftekhar and Tucci Christopher L, Research Policy, 39 (10) (2010) 1264-1276. This paper extends the line of research attempting to link innovation to economic growth by addressing some unexplored questions. Using global patent data, this paper empirically investigates the importance of both the quantity and quality of innovation on economic growth, controlling for past measures of inventive inputs. Moreover, the research examines how innovation inputs can be translated into per capita growth under the various economic structures and stages of economic development. Based on a sample of 58 countries for the period 19802003, the empirical results indicate that countries hosting firms with higher quality patents also have higher economic growth. Furthermore, there is some evidence that those countries that increase the level of patenting also witness a concomitant increase in economic growth. Trade secrets in the intellectual property strategies of entrepreneurs: The Estonian experience, Kelli Aleksei, Mets Tnis, Pisuke Heiki, Vasame Elise and Vrv Age, Review of Central and East European Law, 35 (4) (2010) 315-339. Secrecy is a traditional method of knowledge protection. The protection and management of trade secrets has high strategic relevance for small transition economies. As the majority of Estonian entrepreneurs are SMEs in low-tech sectors, the implementation of adequate trade-secret protection strategy is vital. There are several advantages to tradesecret protection. First, the scope of trade-secret protection can be extensive and includes nonpatentable knowledge. Second, it does not require the registration or fulfillment of any formal procedures. The Estonian high-tech sector also relies on tradesecret protection. Concentration of activities in a lowor high-tech sector only determines whether entrepreneurs combine patent and trade-secret protection or whether they are solely dependent on trade-secret protection. The enhancement of entrepreneurial skills to manage trade-secrets is crucial. Despite the high strategic relevance of trade secret protection, Estonian entrepreneurs do not, as yet, seem to have the necessary capabilities to leverage trade-secret protection. A similar situation can be detected in other Baltic states. Therefore, the main focus of this article is on the exploration of how to control and utilize trade secrets in the value creation process by entrepreneurs in the Estonian legal and economic environment through appropriate economic and legal strategies and relevant legal implementation and protection measures. The authors analyse theoretical and practical issues concerning trade-secret protection, argue their own concepts and put forward several proposals.

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Enforcement, economics and estimates, Yu K Peter, WIPO Journal, 2 (2010) 1-23. This article focuses on intellectual property enforcement, a topic that is of great importance to both developed and less developed countries. It begins by refuting the simple, and often politically motivated, claim that many countries fail to provide effective intellectual property enforcement by virtue of their lack of political will. Drawing on the latest economic literature, this article shows that high enforcement standards come with a hefty price tag and difficult trade-offs. The article then outlines the challenges in measuring the cross-border economic impact of piracy and counterfeiting. As an illustration, the article discusses the ongoing effort by the US International Trade Commission to measure the impact of intellectual property infringement in China on the US economy. The article concludes with an analysis of the various metrics that can be or have been used to develop cross-country comparative analyses. It highlights the continuous disagreement across nations over what metrics should be used. It also suggests new areas researchers can explore in their continuous search for a set of mutually satisfactory metrics that advance the international intellectual property enforcement debate. The impact of piracy on innovation in the presence of technological and market uncertainty, Banerjee Dyuti and Chatterjee Ishita, Information Economics and Policy, 22 (4) (2010) 391-397. With a single innovating firm facing only technological uncertainty, piracy unambiguously retards innovation. However, with R&D competition where firms face both market and technological uncertainties, it is shown that if the two firms differ significantly with respect to the efficiency in R&D investment, then piracy increases the R&D investment of the less efficient firm and reduces that of the more efficient firm. In this case piracy enhances the overall probability of a successful innovation. Intellectual property, commercial needs and humanitarian benefits: Must there be a conflict? Krattiger Anatole, New Biotechnology, 27 (5) (2010) 573-577. Given the experience of countries both developing and developed that have used intellectual property (IP), IP protection and IP

management to stimulate innovation, there is ample proof that good IP management has benefited multitudes of people around the world with new technologies, products and services. Innovations in health and agriculture have greatly enriched lives. But does this experience apply to all countries? If the best proof is experience, then what can be said authoritatively about the effects of using IP systems wisely in developing countries? The review article describes experiences from around the world and case studies in an attempt to answer these questions. Does the protection of foreign intellectual property rights stimulate innovation in the US? Qiu Larry D and Yu Huayang, Review of International Economics, 18 (5) (2010) 882-895. Although standard theories suggest that patent protection helps stimulate innovative activities, some new theories argue the opposite. Empirical studies do not generate conclusive results either. This paper investigates empirically the impacts of foreign patent reforms on innovation in the US, using data on successful patent applications in the US over 33 years and major IPR reforms in 21 countries, in addition to the patent reforms in the US and the TRIPS Agreement of the WTO. It is found that the TRIPS Agreement has had significant impacts on innovation in the US, which highlights the importance of international cooperation in patent protection. However, the effects of strengthening patent protection by individual countries are not statistically significant. This result seems to imply that the US market is already sufficiently large/profitable to provide innovation incentives in the US and therefore further strengthening foreign patent protection simply increases the US innovators' rent, but not their innovation. Intellectual property valuation: How to approach the selection of an appropriate valuation method? Lagrost Cline, Martin Donald, Dubois Cyrille and Quazzotti Serge, Journal of Intellectual Capital, 11 (4) (2010) 481-503. This paper aims to assess how to select an appropriate intellectual property valuation method according to the valuation situation and context. The article describes the difference between the quantitative and qualitative methods and principle and reviews the principal approaches and methods used to evaluate an intellectual property asset and proposes a framework to help the evaluators to select an

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appropriate valuation method. The parameters and requirements that influence the choice of an IP valuation method in order to reach the expected valuation result are discussed. The authors attempt to develop a synthesized and integrated procedure so as to provide useful guidelines for any evaluator faced with the difficult task of choosing an appropriate IP valuation method. The limitation of the article is that not all of the existing methods are taken into account in the final proposed procedure. Besides, the authors make a series of assumptions and their selection of methods may not be entirely shared by other researchers and practitioners. Innovation, imitation, and intellectual property rights with international capital movement, Okawa Yoshifumi, Review of International Economics, 18 (5) (2010) 835-848. This paper extends the established Helpman (1993) model by introducing international capital movement, and obtains new results concerning the welfare implications of tightening intellectual property rights (IPR) in the South. First, if separated capital markets in the North and the South are integrated, enforcement of IPR would have more desirable welfare effects in both regions. Second, when international capital movement is allowed, the North always gains from the tightening of IPR if the imitation rate is sufficiently high. This implies that the North's demand on the South to tighten IPR becomes stronger as the integration of international capital markets progresses. Collusive and exclusive settlements of intellectual property litigation, Hemphill Scott C, http://papers.ssrn.com. This essay considers antitrust objections to recent settlements of intellectual property litigation. Part I examines the Google Book Search settlement, which resolves a copyright dispute between Google and a class of authors and publishers, including the creators of so-called orphan works. It focuses on one term of the agreement, the license granted to Google to distribute orphan works. Settlement opponents have objected on the ground that rival distributors will find it difficult to secure similar licenses. Proponents, on their part, defend on the ground that one is better than none - that this joint venture raises welfare compared to a world without the settlement. These arguments are evaluated and it is explained why neither is a correct approach to the antitrust inquiry.

The debate to this point has assumed that antitrust objections are relevant to the approval of this classaction settlement. As Part I also demonstrates, that premise is doubtful. Under the applicable law, the district judge must determine whether the settlement is fair, reasonable, and adequate for class members, not consumers. Even accepting the argument that the settlement raises the cost of future entry, approval is appropriate if, as seems likely, this effect does no harm to authors and publishers. Part II considers patent suits in which a brand-name drug maker seeks to prevent entry by a competing generic firm. In some cases, the brand-name firm makes a large payment to the generic firm to induce settlement and delay generic entry. Some courts considering antitrust objections to these settlements have adopted a rule of effective per se legality. As Part II explains, such a rule overstates the exclusionary force of a patent, ignores precedent that encourages judicial tests of patents, and leads to absurd results - for example, by removing the difference between strong and weak patents, since either can delay competitive entry until patent expiration, provided the payment is large enough. Conviction or coercion? Peru on the road to TRIPS-plus, Breidenbach Andrew, http://papers.ssrn.com. Notwithstanding Perus attempts to reign in everheightening IP protection standards at the multilateral level, Peru has adopted domestic IP standards that are TRIPS-plus. This paper explores the development of IP standards in Peru, focusing on bilateral linkages of IP disciplines with trade and finance agreements, and domestic interest group pressures. On balance, it is clear that Peru did not adopt TRIPS-plus standards because of normative conviction or pressure from domestic IP interest groups, but because IP protection has been linked explicitly with trade and finance agreements with the US upon which Peru depends for economic growth. On the methodology for quantifying innovations, Rao Balkrishna, International Journal of Innovation Management, 14 (5) (2010) 823-839. Human ingenuity will play an ever-important role in this century and into the foreseeable future. This is because of phenomena such as globalization and climate-change that stress the need for more innovative output from developed countries. Such a picture has made it necessary to develop reliable

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models for quantifying innovations. The huge momentum behind the need for quantifying innovations is brought out by the research efforts of the Organization for Economic Cooperation and Development (OECD) and the United-States (US) government, which are at the forefront of the modelling activities required for this task. This effort describes some approaches, and the resulting models, for scoring individual innovations. Most of these approaches quantify innovations by considering their ensuing societal impact. In the course of this process, numerous variables have been identified that might have a significant influence from a scoring perspective. This work is the first portion of a research effort that addresses the theoretical background needed for quantifying innovations. The empirical results will follow up in a later work. Multi-stakeholder partnerships for transfer of environmentally sound technologies, Morsink Karlijn, Hofman Peter S and Lovett Jon C, Energy Policy, 39 (1) (2011) 1-5. Multi-stakeholder partnerships can overcome many of the problems which exist with the transfer of Environmentally Sound Technologies (ESTs) from developed to developing countries, but as yet they have not been explored in detail in the negotiations under the United Nations Framework Convention on Climate Change (UNFCCC). Technology transfer is an important part of the UNFCCC, but the mechanism for achieving this is problematic. Developed countries prefer a market approach whereas developing countries tend to negotiate for direct grants. Multistakeholder partnerships offer a pathway through which technology is transferred and developing country capacity enhanced, while the interests of developed country private enterprise innovators are also protected. In this article, opinions and a casestudy on multi-stakeholder partnerships are presented. Besides, some of the advantages that multistakeholder partners can offer are also discussed. Patents Large-scale open innovation: Open source vs patent pools, Rayna Thierry and Striukova Ludmila, International Journal of Technology Management, 52 (3&4) (2010) 477-496. The traditional view of innovation, which implies that companies innovate on their own, has been recently challenged by the open innovation concept

promoting the use of external knowledge. Collaboration between firms has always existed in one way or another, however, large-scale open innovation is now the next step for many companies. This article conducts a comparative analysis of the two largest open innovation structures: patent pools and open source. The issues of financial and nonfinancial benefits, appropriability, standards, cooperation, risks and feasibility are, in turn, discussed for each of the structures. Finally, a synthesis of the results is established and recommendations in regard to the adoption of these structures are given. Patenting cryptographic technology, Vetter Greg R, Chicago-Kent Law Review, 84 (2010) 757. The policy concerns intersecting patent law and cryptographic technology relate to the technologys beneficial uses in securing information in a commercial and social fabric that increasingly relies on computing and electronic communications for its makeup. The presence of patenting in a technology can impact diffusion of interoperable technology. Standardized embeddable cryptography facilitates its supply. Patent law for several decades has waxed and waned in its embrace of software implemented inventions rooted in abstract ideas such as the mathematics and mathematical algorithms underlying modern cryptography. This article documents the growth of cryptographic patenting. Then, in light of this growth and patent laws resulting shadow on the technology, it discusses implications for data security. These implications include both collaborative and contentious responses by the technology providers and distributors furthering cryptography in the information technology ecology. A uniform framework for patent eligibility, Efthimios Parasidis, Tulane Law Review, 85 (2) (2010). There is a need to clarify patent law so as to advance resolution of its most fundamental question delineating the categories of subject matter that are eligible for patent protection. Coupled with the active role the Supreme Court has taken in examining this precise issue, individuals and non-profit organizations have galvanized a public discourse through constitutional challenges to the issuance of various biotechnology patents. Despite a statutory framework that has remained constant since 1793, courts have been unable to create a comprehensive test for determining patent-eligible subject matter that

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accurately embodies the foundational principles that underlie the federal grant of patents. It is argued that the proximate cause of the lack of an appropriate framework is the failure of courts to clearly define the statutory categories and the absence of a technology-agnostic method of analyzing whether an invention claims ownership over a product of nature. This article sets forth a uniform framework that addresses patent-eligible subject matter through the creation of a practical methodology that focuses on these two principles. The advantages of the proposed framework are highlighted through the application of the framework to traditional inventions and emerging biotechnologies. Rules for patents, Burstein Michael J, William & Mary Law Review, 52 (6) 2011. There is widespread agreement that the patent system in the United States is in need of reform. Most of the proposals for patent reform that have proliferated in recent years share two common assumptions: that patent policy is best made through case-by-case adjudication of the validity of individual patents, and that the existing allocation of authority over patent policy, in which the courts are primarily responsible for interpreting and applying the broad language of the Patent Act, ought not to be disturbed. This article challenges both assumptions. The problem of patent reform is approached primarily as a problem of sound administration rather than innovation policy and the argument is that Congress should grant the Patent & Trademark Office (PTO) substantive rulemaking authority. The administrative structure of the patent system has been largely unchanged since 1836. But the administrative tasks that a well-performing patent system must carry out have changed markedly since that time. Most importantly, technology in the early-to mid-nineteenth century was relatively uniform. Today, by contrast, the wide variety of technological and economic conditions in which the patent system is supposed to provide incentives for innovation requires self-conscious tailoring of the elements of patentability both rules and standards to those diverse circumstances. Optimal patent policymaking requires forwardlooking deliberation and cost-benefit analysis based on technological and economic expertise; clarity and predictability so that entities making investment choices based on the property-like aspects of patents can be confident in the legal regime governing those rights; and transparency and accountability to ensure

that the public interest which is often distinct from the interests of patent holders is taken into account. Unlike courts, agencies acting through rulemaking can gather and expertly analyse all of the relevant information to make express policy judgments based on costs and benefits, can decide issues prospectively and avoid piece-meal decision-making, and can systematically engage the public in the policymaking process. Although agencies are subject to certain well-understood institutional pathologies, such as capture by powerful interests, on balance they are more likely to make effective policy than courts. Granting the PTO substantive rulemaking authority would require significant changes to the structure and function of that agency, and to the role of the courts. The PTO would require the addition of a policymaking capacity separate but capable of drawing insights from the examination process. The courts in turn would play a constructive secondary role surfacing issues that require attention in the interstices of agency rules and engaging in judicial review of those rules under traditional standards of administrative law. Patenting human genes: The Myriad controversy, Chuang Chester S and Lau Denys T, Clinical Therapeutics, 32 (12) (2010) 2054. The controversy over human gene patents was recently reignited when a United States Federal District Court decided in March 2010 that isolated human gene sequences are not patentable. An appeal of the decision is pending, but in late October, the US Department of Justice filed a friend-of-the-court brief in the case arguing that such gene sequences should not be patentable. Because this case may eventually find its way to the US Supreme Court, the ruling could have significant implications on gene-based medical therapies and the biotechnology industry at large. It is therefore important to assess both past and present contexts of this controversy, taking into account scientific research, healthcare access, and ethical concerns. Concerted refusals to license intellectual property rights, Bohannan Christina, Hovenkamp Herbert J, http://papers.ssrn.com. Unilateral refusals to license intellectual property rights are almost never antitrust violations, as is true of most unilateral refusals to deal. Concerted refusals to deal are treated more harshly under the antitrust

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laws because they can facilitate collusion or, in the case of technology, keep superior products or processes off the market. In its en banc Princo decision a divided Federal Circuit debated whether Congress had protected concerted refusals to license from claims of patent misuse. The majority rejected the dissents argument that Congress had no such intent and then went on to hold that an alleged concerted refusal to license was not misuse. This conclusion is troublesome because in its Independent Ink decision the Supreme Court virtually equated the scope of antitrust liability with the scope of misuse as defined by 271(d). Broad legality for concerted refusals to license patents, and unused patents in particular, would have serious implications for competition and innovation. A concerted refusal to license a factory or other productive asset can facilitate collusion by denying resources to rivals unless they can find alternative sources of supply. A concerted refusal to license an unused patent can go much further. Not only does it deny rivals that particular technology but it also prevents them from developing any technology independently that would infringe one or more of that patents claims. Of course, not every concerted refusal to license should be unlawful per se. In antitrust, they are appropriately covered by the ancillary restraints doctrine. Naked agreements not to license are unlawful per se, while refusals reasonably necessary to further joint research or production would be unlawful only if market power and anticompetitive effects were proven. By contrast, reading 271(d) of the Patent Act to authorize all concerted refusals is likely to harm both competition and the incentive to innovate. An unsettling development: The use of settlement related evidence for damages determinations in patent litigation, Narechania Tejas N, Kirklin Jackson Taylor, http://papers.ssrn.com. In recent years, the Federal Circuit has scrutinized damages awards in patent infringement cases with a renewed vigour. In so doing, it has issued decisions that have significantly impacted the types of evidence that courts may consider in determining a reasonable royalty for an infringed patent. This comment focuses on one particularly notable case, ResQNet.com Inc v Lansa Inc, where the Federal Circuit stated that the most reliable evidence of a reasonable royalty may be a license that emerges from the settlement of other litigation. Courts have repeatedly held that evidence related to settlement

offers of other litigation is off limits. Rule 408 of the Federal Rules of Evidence explicitly provides that conduct or statements made in compromise negotiations is not admissible . . . when offered to prove liability for, invalidity of, or amount of a claim. Several courts have extended this rule to establish a categorical privilege that protects settlement negotiation related evidence from discovery or admission as evidence. In the short time since the Federal Circuits ruling in ResQNet, however, this rule has been hotly contested. In several cases, patent practitioners have sought to discover and introduce evidence pertaining to a patent holders previous settlement of an infringement claim. The results have been mixed. Some district judges in the eastern district of Texas have allowed the discovery of the underlying negotiations to a prior, related settlement agreement because it may be central to the fact-finders determination of damages. Simultaneously, however, other judges in that same district have reached a contrary conclusion, finding that the Federal Circuits decision does not compel the admission of evidence and testimony relating to settlement agreements in prior litigation nor does it alter the law regarding discoverability. Several other courts have also reached conflicting conclusions. This comment argues that the Federal Circuits brief statement in ResQNet that the most reliable license in th[at] record arose out of litigation should not be read to abrogate the protections that have historically extended to settlement negotiations. Instead, courts should retain a general rule that protects against the discoverability of settlement negotiation related evidence and limits the admissibility of settlement-based licenses. Such a rule is consistent with ResQNet, other Supreme Court and Federal Circuit precedent, and the sound judicial policy promoting the settlement of patent infringement claims. A heuristic procedure to identify the most valuable chain of patent priority network, Fang-Pei Su, Wen-Goang Yang and Kuei-Kuei Lai, Technological Forecasting and Social Change, http://papers.ssrn.com. In this study, support is provided for the argument that patents are at their maximum value at those times when they are under litigation. A heuristic procedure is developed to determine the way in which such patents under litigation form a network of patent

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family members, and then go on to examine the priority patents involved. Subsequently an attempt is made to develop a simple procedure to further identify both the critical and significant chains within the proposed patent priority network. It is suggested that the critical and significant chains that are created within the above network provide companies with important information which will ultimately provide them with valuable support for the subsequent decision of their patent portfolio strategies. Evergreening: A deceptive device in patent rights, Dwivedi Gaurav, Hallihosur Sharanabasava and Latha Rangan, Technology in Society, 32 (4) 2(010) 324-330. Patents are the most important way by which inventors can protect their invention and the income that might derive from innovations developed in return for the full disclosure that enters into public domain after expiration of the patent term. In certain domains, monopolies over patent rights are being extended beyond the patent period, particularly in high-revenue-earning pharmaceutical sectors. This article presents evergreening strategies that are regularly employed by the giant branded pharmaceutical firms as a tactic to bypass existing patent laws and limit generic competition in the marketplace. The article examines the implications of evergreening for different stakeholders, including branded and generic drug companies and consumers. Problems that arise due to evergreening are also discussed. The frequency of such strategies necessitates strong patent interpretations that are protective of the spirit of patent laws. A rough set based approach to patent development with the consideration of resource allocation, Huang Chun-Che et al., Expert Systems with Applications, 38 (3) (2011) 1980-1992. Patent strategy is the overriding mechanism that helps direct investment, resource allocation, expectations, and policy development within an organization. Much studies of patent for example, patent classification, patent analysis, patent management, patent strategy planning have been made. Due to the high cost of devoting to the research and development for a new patent application, it is essential for a company to develop the patent portfolio based on analysing related information for fitting with cost constraint and maximizing the benefit. However, only few research attempts to

develop new patents with the consideration of resource allocation, for example, optimizing budget utilization. In addition, the previous studies did not derive significant technologies and induct rules for resource allocation through patent analysis. In some cases, the patent analysis may process qualitative information that is difficult to analyse by standard statistical techniques. The rough set approach, which is suitable for processing qualitative information, is required to induct decision rules to derive critical technologies of patent. In this paper, a systematic approach to analyse existing patent information based on rough set theory with the consideration of resource allocation is developed. A case study is presented to demonstrate the contribution of the proposed approach which assists on decision-making in patent reform or invention with constraint resource. Stimulating energy-efficient innovations in the Dutch building sector: Empirical evidence from patent counts and policy lessons, Noailly Jolle and Batrakova Svetlana, Energy Policy, 38 (12) (2010) 7803-7817. In the Netherlands where the building sector accounts for 33 per cent of carbon emissions, the government aims to halve the total energy use from buildings by 2030 compared to 1990 levels. To this end, the Dutch government has set specific goals in order to foster technological innovation related to energy efficiency in buildings. The objective of this paper is to explore the links between technological innovation and public policies in this sector over the last 30 years. The paper aims (1) to measure the evolution of innovations related to energy efficiency in buildings in the Netherlands using patent counts and (2) to provide a historical overview of the policy framework. Descriptive data on patenting activities show that the Netherlands have a clear comparative advantage in the field of energy-saving lighting technologies, mainly due to intensive patenting activities by Philips. High-efficiency boilers also represent a substantial share of Dutch innovation activities in this domain over the last decades. In many other fields (such as insulation, heat-pumps and cogeneration, solar boilers, etc.), however, Germany, Austria and Scandinavian countries rank much higher than the Netherlands. The descriptive analysis of Dutch energy policy shows an intensification of energy policy in the mid-1990s, followed by a slight decline after 2001. Overall, the simultaneous introduction of policy instruments makes it difficult to evaluate the

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effectiveness of policies. Also, the policy framework is characterized by the introduction of a large number of short-lived policy instruments and frequent policy changes. The lack of stability and continuity of energy policy may be damaging for innovation. Copyright and Trademark The impacts of the differences between UK and US copyright laws for sound recordings on musicians, Mulhaney-Clements Stephen, Management Decision, 48 (9) (2010) 1388-1399. This paper aims to investigate the potential impacts that differences between UK and US copyright laws for sound recordings have on musicians. It also highlights the needs for continued standardization of international copyright laws (particularly those for sound recordings), copyright law education for creators, and a need for musicians to re-think future artistic and managerial decisions. In this critical analysis of current academic literature and legislation, significant differences between the domestic copyright laws of the UK and USA have been identified. The impacts of these differences on musicians are discussed and conclusions drawn. Findings suggest that there are several significant differences between the UK and US copyright laws for sound recordings, which do impact on musicians in both countries. However, determining the degree of impact is dependent on several contributing factors: the nationality of the musician; the level of success of the musician; the creative roles adopted by the musician; and the ambition of the musician. Research scope was limited to the domestic copyright laws of the UK and USA only; and, specifically, the copyright laws for sound recordings. This paper is one of the first to investigate the impact of differences in domestic copyright laws on musicians, and identifies several strategy issues that must be considered by musicians when making future artistic and managerial decisions. Fulfilling the copyright social justice promise: Digitizing textual information, Mtima Lateef, Jamar Steven D, New York Law School Law Review, 55 (1) (2010) 77-108. This article explores the evolving copyright landscape in the digital information age and places the Google Library Project (Google Books, the Project) and the Google Settlement Agreement within that terrain. The paper demonstrates how this initiativethe mass digitization of the nations

storehouse of printed texts with the goal of making them available to anyone who has access to the Internetfits squarely within that terrain. Briefly, it is contended that it does so because it serves copyright laws central purpose of advancing knowledge and culture, especially through furthering copyright social utility and justice through inclusion of those who have been excluded, and it does this by using an accepted copyright mechanism (a private, court-supervised settlement) to address the novel copyright problems presented by the new technologies, while still preserving the rights of copyright holders. In sum, the incorporation of this new technology and the works generated through it into the copyright regime achieves the social utility balance mandated by the US Constitution and fulfills the social justice promise of copyright law. Digital piracy and firms strategic interactions: The effects of public copy protection and DRM similarity, Pilsik Choi, Sang Hoo Bae and Jongbyung Jun, Information Economics and Policy, 22 (4) (2010) 354-364. The purpose of this paper is to investigate how different types of strategic interaction affect firms optimal levels of digital rights management (DRM). In the game-theoretical duopoly model described, the firms do not directly compete with prices, but they become interdependent while coping with digital piracy. The analysis shows that (1) stricter public copy protection by the government leads to lower DRM levels and more piracy when the firms regard their DRM levels as strategic substitutes, but to higher DRM levels and less piracy when the firms perceive their DRM levels as strategic complements, and (2) a higher degree of similarity between the DRM systems leads to lower DRM levels and more piracy. The policy implications of these findings are also discussed in the paper. Parallel importation of copyright products in Taiwan: A struggle with international trade policy, Yuan-Chen Chiang, Journal of World Intellectual Property Rights, 13 (6) (2010) 744-769. Unlike Taiwan's patent law, which expressly permits parallel importation, and the trademark law, where parallel imports have been held permissible by Taiwan courts, Taiwan's copyright law, after amendment in 1993, basically forbids parallel imports (Articles 87(4) and 87-1). This enactment essentially creates a new distribution right for copyright owners.

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Since then, parallel imported copyright products have been treated as unlawful copies. Distributors of those parallel imports in Taiwan are therefore subject to both civil and criminal penalties. This article starts by covering the rules that govern parallel imports in Taiwan, their impacts on Taiwan's copyright market and assesses the role Taiwan's international trade policy played in view of its copyright legislation. It also analyses the adverse effects of this ban on parallel imports on Taiwan's trade with other countries. As Taiwan joined the World Trade Organization (WTO) in 2009, it is concluded that the ban on parallel imports may be challenged by other WTO members as an unlawful trade barrier. The existing ban under Articles 87(4) and 87-1 of Taiwan's copyright law does not properly address the parallel imports issues or serve the objectives of Taiwan's copyright law. Fair-use application on a case-by-case basis should be a more adequate approach. Copying, superstars, and artistic creation, Alcal Francisco and Gonzlez-Maestre Miguel, Information Economics and Policy, 22 (4) (2010) 365-378. A new perspective on the impact of unauthorized copying and copy levies on artistic creation is provided. The analysis emphasizes three aspects of artistic markets: the predominance of superstars, the important role of promotion expenditures, and the difficulties of talent-sorting. In the short run, piracy reduces superstars earnings and market share and increases the number of niche and young artists. In the long run, copying can also have a positive effect on high-quality artistic creation by helping more young artists start their careers, which increases the number of highly talented artists in subsequent periods. The long-term impact of levies on copy equipment on artistic creation depends on whether their yields primarily accrue to superstars who already receive rents or are allocated to help young artists. From music tracks to Google maps: Who owns computer-generated works? Perry Mark and Margoni Thomas, Computer Law & Security Review, 26 (6) (2010) 621-629. Increasingly the digital content used in everyday life has little or no human intervention in its creation. Typically, when such content is delivered to consumers it comes with attached claims of copyright. However, depending on the jurisdiction, approaches to ownership of computer-generated works vary from

legislated to uncertain. In this paper various approaches taken by the common law, such as in Canada, and the legislative approach taken in the United Kingdom are looked at. The options for how computer-generated works may be treated and suggestions for their best placement in copyright are discussed. Copyright for engineered DNA: An idea whose time has come? Holman Christopher M, http://papers.ssrn.com. The rapidly emerging field of synthetic biology has tremendous potential to address some of the most compelling challenges facing the planet, by providing clean renewable energy, nutritionally-enhanced and environmentally friendly agricultural products, and revolutionary new life-saving cures. However, leaders in the synthetic biology movement have voiced concern that biotechnology's current patent-centric approach to intellectual property is in many ways illsuited to meet the challenge of synthetic biology, threatening to impede follow-on innovation and open access technology. For years, copyright and patent protection for computer software have existed sideby-side, the two forms of intellectual property complementing one another. Numerous academic commentators have rejected the notion of copyright for engineered genetic sequences (the primary output of synthetic biology), based in large part upon a misinterpretation of copyright law and/or a failure to appreciate the profound advances in synthetic biology that have occurred in recent years. This article makes a case for extending copyright protection to engineered DNA, based in large part upon the striking analogy between engineered genetic sequences and computer programs, made more compelling by the growing convergence of software engineering and synthetic biology. The major doctrinal leap occurred 30 years ago when Congress and the courts sanctioned the use of copyright to protect computer programs. A further extension to engineered DNA would represent a comparatively modest incremental expansion, and would be comfortably supported by current copyright doctrine without any need to amend the Copyright Act (although certain clarifying and limiting amendments would be desirable). The article critiques, and to a large extent refutes, a variety of doctrinal and policy arguments that have been raised by commentators against extending copyright protection to engineered DNA, and concludes by

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outlining a number of positive policy objectives that could be addressed by such an extension of copyright law. Freedom of panorama: A comparative look at the right to create derivative works in public spaces, Newell Bryce Clayton, http://papers.ssrn.com. Freedom of panorama, or the right to take and use photographs of public spaces, attempts to balance various property rights with the importance of allowing reasonable freedom for photography in public places. It is typically addressed through copyright, although other laws related to trademark or national security may also restrict public photography. This freedom is more limited in the United States than in many other countries. This paper seeks to explore the balance struck in US law by contrasting it with the approach taken in other jurisdictions, such as the United Kingdom, Brazil, and the European Union. Because public photography has become such a ubiquitous aspect of our participant digital society and many of the uses put to public photography arguably meet the fair use or de minimis use tests, Congress ought to provide clear statutory guidance allowing (at least) these non-commercial fair uses of copyrighted material visible and permanently situated in public places. Counterfeit fashion: The interplay between copyright and trademark law in original fashion designs and designer knockoffs, Tu Kevin V, Texas Intellectual Property Law Journal, 18 (3) (2010) 419-50. The fashion and apparel industry is big business in both the United States and abroad. With the growth of the fashion industry and the role of the media in disseminating fashion commentary, public awareness about prominent fashion designers and the creations of such designers is at an all-time high. The popularity and status attached to certain designers and their trademark designs, therefore, has led to the rise of style piracy. A style pirate will copy a designers original creative work to capitalize on the popularity or desirability of the product. The copying can occur in varying degrees, including attempts to pass off counterfeit copies as the original, or the creation of designer-inspired products that seek to profit by giving the impression of relatedness to the original. Despite the potential loss of substantial revenue and exclusive control over the use of original designs

facing designers, few legal rights exist to protect these valuable creative and economic interests from misuse by style-pirates. Specifically, United States laws extend spotty legal protections, at best, against counterfeit and knockoff designs. The Copyright Act fails to provide adequate protection because its protection is generally limited to non-utilitarian designs. Thus, the inherent usefulness of apparel traditionally exists as a barrier to protection through copyright law. Given the shortcomings of copyright law, many designers have turned to trademark law and secondary meaning in trademarks as a means of circumventing the requirements of copyright law in order to defend against style-pirates and achieve some modest level of design protection. Although trademark law has been extended to utilitarian items in some cases, only a small portion of designs will ever reach the level of recognition and notoriety required for this type of protection. The interplay of both copyright and trademark law in this area highlights (1) the fact that neither copyright law nor trademark law affords sufficient protection for the original designs of fashion designers, and (2) the need for a more comprehensive plan for protecting creative but utilitarian works such as fashion designs. Based on the shortcomings of the copyright and trademark laws to provide adequate rights and remedies for fashion designers, this article argues that the copyright eligibility requirements should be extended to encompass the original and creative elements of fashion designs, such that the framework of copyright law, and not trademark law, becomes the primary method of design protection. Free speech and international obligations to protect trademarks, Ramsey Lisa P, Yale Journal of International Law, 35 (405) (2010) 407. There is an increasing global recognition that certain trademark laws may harm the free flow of information and ideas. Yet, if a state reduces trademark rights to protect speech interests, this may raise concerns regarding that countrys compliance with its international obligations to protect trademarks. This article argues that the trademark provisions of the Paris Convention and TRIPS contain sufficient flexibility to allow member states to protect expression in their domestic trademark laws. If a states speech-protective trademark laws are challenged before the World Trade Organization as violating the Paris Convention or TRIPS, WTO

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panels and the Appellate Body should narrowly interpret ambiguous international obligations to protect trademarks and avoid an activist interpretation of the provisions that adopts a particular solution to any conflict between trademark and free speech rights. To better protect speech interests in international trademark law, member states could amend the Paris Convention or TRIPS to explicitly require states to protect the right to freedom of expression when implementing their trademark

obligations. States could also add specific permissive or mandatory exemptions for certain uses of a mark to the international trademark laws. This article concludes that states should instead adopt speechfriendly trademark laws at the national level, evaluate whether these domestic laws properly balance trademark and free speech rights, and not pursue international reform until more states recognize that certain trademark laws can harm the right to freedom of expression.