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National Disparities and Standards-Essential Patents: Considerations for India
Get PDFPatents on standardized technologies are being issued with increasing frequency, and the majority of these patents are held by large multinational firms based in developed economies. As a result, firms from less-developed economies with sparse patent holdings are disadvantaged in both domestic and foreign markets. While protectionist governmental policies can address these disparities, such measures are potentially contrary to international treaty obligations and generally unsuccessful in the long term. An alternative approach involves greater participation in international SSOs by firms from less-developed economies. This increased participation is likely to benefit such firms both in terms of technology development, strengthening of patent positions, and influence over SSO policies. To facilitate increased participation, both financial and institutional support will be required from local governments, NGOs, multinational organizations and SSOs themselves. To the extent that participation in international SSOs by firms in developing economies such as India can be increased, it could have a meaningful impact on domestic innovation, job creation, technical capability and manufacturing output
How Photographs Infringe
Get PDFCourts and commentators have lavished attention on the question of what makes a photograph original and entitled to copyright protection. Far less attention has been devoted to the issue of how photographs infringe. This is the first Article to systematically explore the different ways in which a photograph can steal intellectual property. Photographs can infringe in two ways: by replication and by imitation. A photograph infringes by replication when, without permission, a photographer points her camera directly at a copyright-protected work—a sculpture, a painting, another photograph—and clicks the shutter. A photograph can also infringe by imitation. In such cases, the plaintiff’s claim is that the infringing photograph imitates the creative expression in her own picture.
One type of photographic infringement by imitation has confounded courts, instances in which the plaintiff photographer stages a tableau before clicking the shutter—e.g., poses a person for a portrait or assembles fruit on a table for a still life—and the defendant imitates that tableau. Copyright law is clear that a photographer has a protected interest against others copying the tableau she staged for a picture. Nonetheless, many courts simply refuse to find infringement in such cases, even when the defendant admits to having imitated that tableau. Looking to the idea/expression dichotomy, these courts excise from consideration the staged tableau as the unprotected “idea” of the plaintiff’s photograph. Having cut the heart out of that image, they inevitably find the defendant’s photograph not to be infringing.
This Article argues that looking to the idea/expression dichotomy to ignore a plaintiff’s staged tableau not only renders a nullity of an entire category of protected photographs, but profoundly misunderstands where to locate a photograph’s “idea.” That idea exists not on the face of the image. Rather, it is the mental vision that a photographer hopes to capture in taking a picture. If she shares that vision with other photographers, they are free to try their hand at embodying that idea in a photograph with no fear of infringement. Once a photographer clicks the shutter, however, the resulting image is expression—entirely expression.
Courts and commentators have justified applying the idea/expression dichotomy to eviscerate photographs out of a concern for protecting the scope of creativity for downstream photographers. This Article proposes that the “thin copyright doctrine” can offer a much better approach to providing such protection. It proposes a “silver platter” principle for determining when a photograph should be entitled only to thin protection
Solar Climate Engineering and Intellectual Property: Toward a Research Commons
Get PDFClimate change is one of the greatest challenges confronting society today. Solar climate engineering (SCE) has the potential to reduce climate risks substantially. This controversial technology would make the earth more reflective in order to counteract global warming. Though the science of SCE is still in its infancy, SCE research and development should proceed in a coordinated, responsible, and expeditious fashion. However, the role of patents, research data, and trade secrets in SCE research remains unclear and contested. To this end, this article identifies concerns that may arise through the acquisition of intellectual property rights in SCE and proposes the formation of an SCE “research commons” to facilitate responsible SCE research and development. This research commons would permit public and private sector research institutions around the globe to share their research data. They would also pledge that any patents or trade secrets they obtain would be managed so as to reduce unnecessary barriers to research and development of safe and effective SCE technologies
Get Real: Why and How Clinicians Should Record, Transcribe and Study Actual Client Consultations
Get PDFThis article will argue that the legal academy has much to learn by recording, transcribing and systematically studying student-client and attorney-client consultations. Clinical faculty can utilize conversation analysis and other social science techniques to do this. Social scientists and medical providers have studied doctor-patient conversations in this way over many years. Through this systematic study researchers have reached conclusions about effective doctor-patient consultations that form the basis for teaching these skills in medical school. This article will highlight some of these studies and their findings. Some have contended that attorney-client conversations simply cannot be recorded and studied in the same way as doctor-patient consultations due to attorney-client privilege. This article will lay out how a law clinic could obtain client informed consent to this procedure, protect client confidentiality and privilege, and gain the necessary approval of the Institutional Review Board. Finally, this article will suggest topics about client consultations that could merit study in the law clinic
Employer-Mandated Vaccination Policies: Different Employers, New Vaccines, and Hidden Risks
Get PDFAlthough debates about access to healthcare and healthcare financing have been in the headlines for years, attention has only sporadically focused on new and resurgent health challenges in the form of outbreaks of contagious diseases. One obvious weapon in the fight against outbreaks is vaccination. Many vaccines have been proven safe and highly effective, but vaccine opponents have been vocal and influential; even some who work in healthcare facilities distrust vaccines. The tension between employees who distrust vaccines and employers who want to encourage or require vaccination has led many healthcare policy and legal scholars to explore the legal and ethical implications of compulsory vaccine policies. Most of the legal scholarship has focused on mandatory influenza (“flu”) vaccinations for healthcare workers, and healthcare employers’ potential liability if they impose vaccine mandates. However, influenza is not the only disease that threatens communities. Moreover, healthcare facilities are not the only employers affected by outbreaks. This Article considers the legal issues healthcare and nonhealthcare employers should consider when deciding whether to require employees to be vaccinated against the flu and other diseases such as measles and pertussis—for which safe and effective vaccines already exist, and the Ebola and Zika viruses—for which vaccines are currently being developed.
Most arguments in support of or in opposition to flu vaccination policies do not address whether healthcare or other employers may face liability if they do not require employees to be vaccinated. The question is critically important because many lawyers and government agencies advise employers to encourage but not mandate employee vaccination, and the only risk identified is the risk of being sued for imposing a mandate in violation of antidiscrimination statutes. The unstated premise is that there is no liability if the employer chooses not to require vaccination. This should consider when deciding whether to require employees to be vaccinated against the flu and other diseases such as measles and pertussis—for which safe and effective vaccines already exist—and the Ebola and Zika viruses—for which vaccines are currently being developed
Amici Curiae Brief of Law Professors, Belk v. Commissioner, U.S. Court of Appeals for the Fourth Circuit
Get PDFAmici Curiae Brief of five law professors filed in the U.S. Court of Appeals for the Fourth Circuit in support of affirming of the Tax Court\u27s holding in Belk v. Commissioner, T.C. Memo 2013-154, and Belk v. Commissioner, 140 T.C. 1 (2013)
La Sal Collaboration (LSSC): Final Report and Consensus Recommendation
Get PDFThe La Sal Sustainability Collaboration (LSSC) was established in 2014 in response to social, economic, administrative, and ecological concerns for the southern La Sal Mountains and adjoining canyon lands. This 285,000 acre landscape includes private lands and public lands managed by the Bureau of Land Management (BLM), U.S. Forest Service (FS), and the Utah School and Institutional Trust Lands Administration (SITLA). LSSC is co-convened by the Utah Department of Agriculture and Food (UDAF) Grazing Improvement Program and the Grand Canyon Trust (GCT)
Reading Alexander V. Choate Rightly: Now is the Time
Get PDFWhatever happens to the Affordable Care Act (ACA) over the next few years, it is fair to assume that state Medicaid programs will be subjected to cost control measures. Despite the recent deployment of substantial arguments to the contrary, the belief still persists that the Supreme Court’s decision in Alexander v. Choate over thirty years ago stands for the proposition that disability anti-discrimination law does not impose requirements on the structure of Medicaid benefits. This belief is misleading at best. In this article, we challenge the access/content distinction and the straitened interpretation of Alexander v. Choate that has resulted from it. We then use cases drawn from education to point the way to a more robust analysis of meaningful access to health care and the constraints it places on the design of state Medicaid programs
Eliminating Passive Disposal: Equalizing Liability Among Current and Prior Owners and Operators in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980
Get PDFIt seems clear, through the 1986 SARA, that Congress did not want innocent parties who conducted due diligence in inspecting the land to be liable under CERCLA. Thus, expanding CERCLA’s definition of disposal to attach liability to passive conduct is inconsistent with Congress’s intent. Therefore, in order to align enforcement of CERCLA with its dual purposes and Congress’s intent in enacting the Act, disposal should be interpreted to exclude passive migration of hazardous substances when the owner or operator knows nothing of the presence of the hazardous substance that is spreading
Putting Resilience Theory into Practice: The Example of Fisheries Management
Get PDFBy acknowledging a world of continuous change and reduced human control over nature, resilience theory thus suggests a wide range of potential changes to marine fisheries management for a changing ocean. Even the most modest of these, however, should inspire comprehensive amendments to both domestic and international fisheries law, particularly to their emphases on MSY. Full incorporation of resilience thinking, in turn, demands a longer-term and system-based perspective on marine management, empowering humans to make choices now to strengthen the ecological resilience of marine ecosystems to the changes that are still coming, increasing the chances that the ocean will remain a complex and biodiverse natural system far into the future