Copyright (c) 2009 All rights reserved. http://works.bepress.com/daniel_gervais Recent documents in Daniel J Gervais en-us Thu, 06 Aug 2009 12:44:35 PDT 3600 http://works.bepress.com/daniel_gervais/18 http://works.bepress.com/daniel_gervais/18 Wed, 05 Aug 2009 10:55:47 PDT The debate concerning the protection of, and access to, "traditional knowledge" has been going on for some time. Academics, governments, non-governmental and intergovernmental organizations, and representatives of indigenous communities have made arguments on many different levels. The most interesting debates are normative in nature: What should international law do about traditional knowledge? Is protection desirable? To what end? Equally interesting is the somewhat more technical debate about how we can proceed to implement some of the (tentative) normative conclusions. The normative debate is situated at the confluence of intellectual property law, cultural studies, ethnology and anthropology. In this short paper, I take a brief tour of this policy garden and suggest that, for at least some forms of traditional knowledge, the protection of geographical indications may offer a partial solution, and that implementing this protection would not be inordinately difficult using the existing Lisbon Agreement. Daniel J. Gervais Intellectual Property Law Geographical Indications http://works.bepress.com/daniel_gervais/17 http://works.bepress.com/daniel_gervais/17 Wed, 05 Aug 2009 10:49:14 PDT Even as a mere conceptual cloud, the term "user-generated content" is useful to discuss the societal shifts in content creation brought about by the participative Web and perhaps best epitomized by the remix phenomenon. This Essay considers the copyright aspects of UGC. On the one hand, the production of UGC may involve both the right of reproduction and the right of adaptation--the right to prepare derivative works. On the other hand, defenses against claims of infringement of these rights typically rely on (transformative) fair use or the fact that an insubstantial amount (such as a quote) of the preexisting work was used. One might also rely on another type of fair use defense--for example, that the second work was used in news reporting, or, although the case law on this point is still controversial, that the reproduction was fair use because it made the work more accessible. While it is clear that creating original content by reusing preexisting content is nothing new, the focus here is on amateur creation and reuse and the Essay discusses whether the amateur nature of the content constitutes a new normative vector. The Essay suggests that the first step to find adequate answers is a proper taxonomy of UGC. Daniel J. Gervais Intellectual Property Law http://works.bepress.com/daniel_gervais/16 http://works.bepress.com/daniel_gervais/16 Thu, 21 May 2009 07:52:30 PDT Because TRIPS introduced a high(er) level of intellectual property protection in a number of developing countries, it provides an opportunity to examine the impact of the introduction of (property) rights on a variety of intangibles in legal systems from which those rights were absent. One question is whether, and if so how, 18th century European rules, updated in concert with other Western nations until 1989, can be successfully integrated into the social, cultural, economic and legal fabric of dozens of developing nations, and how success is measured in that context. TRIPS also allows us to consider the impact of high(er) levels of intellectual property protection on economic activity. The welfare costs associated with the introduction of higher intellectual property protection are well known. Instead of focusing only on the welfare costs (or "ip negatives"), this paper asks, if intellectual property is an ingredient of the innovation recipe, what are the other ingredients and how should they be used? The paper considers development economics and its study of the ip/investment/intellectual property nexus, and consider insights from other social scientists on innovation and creativity and how those might inform our conclusions and recommendations to developing nations, and our understanding of the success of some of them at the global innovation game. The paper also looks at work done on National Innovation Systems (NIS) and, indirectly, the contribution of systems theory to our understanding of how intellectual property and innovation interrelate. Daniel J. Gervais Intellectual Property Law TRIPS & Development http://works.bepress.com/daniel_gervais/15 http://works.bepress.com/daniel_gervais/15 Tue, 10 Feb 2009 08:07:58 PST The relationship between domestic intellectual property statutes and international law in growing in scope and depth. This paper is a chapter in a book that emphasizes that international law is not only used to interpret domestic law but in fact may itself become a guide for international tribunals, such as the World Trade Organization Dispute-Settlement Body. The Paper considers mostly the role that international norms have played in recent decisions of the Supreme Court of Canada and the Federal Court. Daniel J. Gervais Intellectual Property Law International Law http://works.bepress.com/daniel_gervais/14 http://works.bepress.com/daniel_gervais/14 Thu, 15 Jan 2009 08:41:06 PST Several countries have fostered the growth of Collective Management Organizations (CMOs) through legislative initiatives in the belief that CMOs offer a viable solution to the problems associated with individual licensing, collecting royalties and enforcing copyright against large numbers of users. In theory, collective licensing enables creators to exercise rights in a fair, efficient and accessible manner. It ensures copyright protection when individual management of it becomes difficult or impracticable. However, collective management is not a panacea, and questions have been raised about the efficiency and the transparency of CMOs and their continued relevancy in the digital age. This Chapter attempts to demonstrate that Canada has developed one of the most efficient (though far from perfect) systems of collective management of rights and that a key vector of this relatively successful endeavour has been the Copyright Board. Part I of the Chapter takes a snapshot of the current state of collective management in Canada and then at the establishment and functioning of the Copyright Board. Part II considers the pros and cons of the Canadian system and lessons that may be drawn to improve collective management in Canada generally and the functioning of the Board in particular. Daniel J. Gervais Intellectual Property Law collective management http://works.bepress.com/daniel_gervais/13 http://works.bepress.com/daniel_gervais/13 Mon, 13 Oct 2008 14:38:53 PDT Intellectual property and human rights must learn to live together. Traditionally, there have been two dominant views of this "cohabitation," namely a conflict view, which emphasizes the negative impacts of intellectual property on rights such as freedom of expression or the right to health and security, and a compatibility model, which emphasizes that both sets of rights strive towards the same fundamental equilibrium. This Chapter takes the dualist view that both are right, though there is, and should be, much more truth to the second approach in the coming years. Daniel J. Gervais Intellectual Property Law International Law http://works.bepress.com/daniel_gervais/12 http://works.bepress.com/daniel_gervais/12 Tue, 18 Dec 2007 11:47:59 PST In Parts I and II of this Paper, the author analyzes the legal protection of databases first in international treaties, in particular the Berne Convention and the WTO TRIPS Agreement, and second under national and regional copyright, sui generis, or other (e.g., tort) law in Europe (both the European Directive on the legal protection of databases of 1996, which was under review, and a number of relevant national laws), the United States, and a number of foreign jurisdictions (Australia, Canada, China, Nigeria, Russia, and Singapore). In Part III, the author provides a critical analysis of the effort to expand the legal protection of databases from both theoretical and empirical perspectives. In his conclusion, the author suggests three paths for the future evolution of the protection of databases at the international level. Daniel J. Gervais Intellectual Property Law http://works.bepress.com/daniel_gervais/11 http://works.bepress.com/daniel_gervais/11 Fri, 14 Dec 2007 08:32:46 PST The flow of P2P is not under control. The laws of physics that applied to the sale of physical copies of records, CDs and the like do not seem to apply to the Internet, which seems counterintuitive to market experts trying to apply traditional rules such as scarcity of supply. There is no scarcity of supply here. Nor are traditional laws of pricing of physical goods directly applicable because the market for authorized music is competing with "free." What is needed is a shift similar to "quantum market economics" for the music industry. Daniel J. Gervais Intellectual Property Law Music File-Sharing http://works.bepress.com/daniel_gervais/10 http://works.bepress.com/daniel_gervais/10 Tue, 16 Jan 2007 23:43:38 PST In three recent cases, the Supreme Court of Canada provided several pieces of the Canadian copyright policy puzzle. We now know that the economic purpose of copyright law is instrumentalist in nature, namely, to ensure the orderly production and distribution of, and access to, works of art and intellect. The Court added that copyright can not enter carelessly into the private sphere of individual users. By targeting end-users in recent lawsuits, copyright holders have also found out that it is difficult to enforce a right that has not been properly internalized. After reviewing the Supreme Court trilogy of cases, the paper explores the importance of the moral imperative and the almost nonexistent role of Parliament in setting policy at the macro level. In Part 3, the paper proposes two concrete ways to align copyright law with its underlying purpose, especially on the internet. The first is to make existing rights easier to manage by facilitating collective management using the Extended Repertoire (or extended collective licensing system). A compatibility analysis with applicable international norms is provided. The second is a recasting of the copyright rights based on the effect of the use made of the work, not its technical nature. Daniel J. Gervais Intellectual Property Law International Law Music File-Sharing http://works.bepress.com/daniel_gervais/9 http://works.bepress.com/daniel_gervais/9 Tue, 16 Jan 2007 23:40:35 PST The Internet has been a catalyst for problems latent within the copyright system. Fundamentally, the question is to determine under what circumstances should a copyright holder have a right to exclude others from using her copyright work on the Internet? This is the topic of this chapter. The underlying hypothesis is that policy analysis concerning copyright has shifted because it is now facing a number of formidable opponents, in most cases for the first time on that scale. Those opponents are other rights, including privacy. Copyright is not or no longer a closed system with exceptions looping back to a set of exclusive rights in which an appropriate equilibrium in the regulation of knowledge creation and dissemination was supposed to be reached. After an analysis of the problems that have emerged in trying to use copyright to exclude use on the Internet, the Chapter suggests possible solutions articulated along three types of use: those that should be free; those that should be licensed collectively (i.e., where the power to exclude is replaced with a remuneration system accompanied by standard conditions) and a small set of uses that can be licensed transactionally. In suggesting a greater role for collective (as opposed to individual) licensing, the paper considers the introduction of an Extended Repertoire System in Canada. Daniel J. Gervais Intellectual Property Law International Law Music File-Sharing