IP Across Disciplines (1)

Sat, 6/1: 4:45 PM  - 6:30 PM 
4157 
Paper Session 
Saturday Session 5 
Hyatt 
Room: Thornton Lounge 
IP law scholarship , whether focused on patent, copyright, trademark, or other types of intellectual property law, is increasingly interdisciplinary-although careful and deep doctrinal and policy analysis is also prominent in the field. These papers bring scholars from around the world to address issues and present results of studies of IP law, behavior, culture, and politics that draw on multiple disciplines and methodologies to explore the many dimensions of IP in everyday life and practice.

Chair

William Gallagher, Golden Gate University School of Law  - Contact Me

Discussant

Peter Yu, Texas A&M School of Law  - Contact Me

CRN

14: Culture, Society, and Intellectual Property

Primary Keyword

Intellectual Property, Culture, and Cultural Heritage

Presentations

Fair Remuneration in Contracts of Authors and Performers: Will the Provisions of the Proposed DSM Directive Change the Landscape?

Proposal

In May 2015, the European Commission launched its ambitious Digital Single Market Strategy, of which one objective was to modernise EU copyright rules to fit the digital age. In September 2016, the Commission published a proposal for a directive on copyright in the Digital Single Market (DSM Directive). The proposal aimed to harmonise copyright rules in a number of areas, and included provisions on fair remuneration in contracts of authors and performers (Articles 14-16), new mandatory exceptions (Articles 3-6), a new right for press publishers (Articles 11-12), and a set of measures for online platforms to take in relation to infringing works (Article 13). Article 13 addressed the so-called 'value gap', and proposed use of content recognition technologies, amongst others measures, to ultimately ensure that authors and right owners benefit financially from online exploitation of their works. It proved to be hugely controversial and divisive, attracted much media attention and significant lobbying, and almost overshadowed other provisions of the DSM Directive. In contrast, Articles 14-16, based on the explicit recognition of the weak bargaining position of authors and performers in contractual relationships, aimed far more directly at ensuring that they receive better remuneration. However, these provisions attracted relatively limited scrutiny.

This paper will discuss Articles 14-16 to examine their potential, if any, to change the contractual landscape for authors and performers in the United Kingdom, a jurisdiction with minimal regulation on copyright contracts. The paper will chart the legislative history of Articles 14-16, discuss key amendments since 2016, as well as responses to the provisions by relevant stakeholders. It will also briefly draw upon recent empirical research with authors and performers (interview and ethnographic data) to discuss whether the provisions address some of the contractual challenges faced by creators in their everyday practice. 

Presenter

Smita Kheria, University of Edinburgh  - Contact Me

Intellectual Property Protection for Works Generated by Artificial Intelligence Systems

Proposal

This study explores intellectual property protection for works created by artificial intelligence systems (the "AI systems"), focusing on intellectual property law. AI systems create work products automatically without human intervention. For the works created by AI systems, computer devises and software are not merely tools; instead, AI systems are engaging in an independent intelligent course of creating works. As such, whether works created by AI systems are eligible for legal and intellectual protections deserves further research.
Many countries have started policy deliberations on this issue. For instance, the United States, EU, Germany, Spain, and Australia limit their copyright and patent protection to human intelligence products. These countries thus incline not to give copyright and patent protection for works created by AI systems. But some other countries, such as Hong Kong, India, Ireland, New Zealand, the UK, find that intellectual protection for works by AI systems is crucial for the further development of the AI industry.
Many foreign governments have been producing policy reports on AI issues. For instance, the White House of the United States issued a report titled "Preparing for the Future of Artificial Intelligence" in 2016; the European Parliament issued a report titled "Report with recommendations to the Commission on Civil Law Rules on Robotics" in 2017; the Japanese government issued a report on the intellectual property advancement plan regarding AI systems.
This study thus will look into whether and how to protect works created by AI systems by legal and intellectual property schemes. This study will also consider the necessity for regulating the AI systems. To do so, this study will analyze AI's status quo and further trend. Furthermore, this study will explore how different countries and their courts addressed the AI issues in terms of intellectual property protection. 

Presenter

Lung-Sheng Chen, National Chung Hsing University  - Contact Me

New Slants on Trademark Slurs and Immoral Marks

Proposal

Many nations have provisions in their domestic trademark legislation that prohibit the registration and/or commercial use of "immoral" trademarks. While such exclusions are permissible under the international intellectual property regime, questions remain as to whether they violate traders' freedom of expression. High profile U.S. cases regarding the WASHINGTON REDSKINS, THE SLANTS and FUCT trademarks have found the US Lanham Act's s. 2(a) proscriptions on the registration of disparaging, immoral and obscene marks to be unconstitutional restrictions on free speech.

In what circumstances, and subject to what conditions, should the registration and commercial use of offensive marks be prohibited? We argue in support of such prohibitions when employed to target racial slurs and culturally offensive trademarks. The trademark system can and should be harnessed to prevent the proliferation of marks that offend against fundamental values of equality, dignity and non-discrimination. A distinction should, however, be drawn, on this rationale, between offensive marks (REDSKINS, INDIANS, CHIEF WAHOO, BLACKHAWKS) and identity-affirming re-appropriations of discriminatory slurs (THE SLANTS, DYKES ON BIKES). Whether the prohibition of an "immoral" mark is justifiable therefore demands a contextual analysis of the trademark as used, taking into account the relationships between the commercial indicia (as speech), the applicant (as speaker), and the public (as audience). Fortunately, attention to the communicative function and shifting public meaning of trademark symbols in the allocation or denial of rights is already an essential feature of how our trademark system works. 

Presenter

Carys Craig, Osgoode Hall Law School, York University  - Contact Me

Co-Presenter

Bita Amani, Queen's University, Faculty of Law  - Contact Me

Email All Contacts