TABLE OF CONTENTS

Functionality and Expression in Computer Programs: Refining the Tests for Software Copyright Infringement

Copy

The global fashion industry produces a huge variety of creative goods to market. The fashion industry profits by developing creative content as in the music, film, video game, and book industries. However, unlike those industries, the fashion industry’s principal creative production lies outside the domain of intellectual property law. Fashion has not been historically protected by copyright law due to differences in the legal treatment of the fine arts, like literature, music, and art, which are accorded copyright protection, and crafts, which are generally not accorded such protection. Although fashion is meant to be functional (i.e., it must fit the human body and keep it warm and dry), it is also artistic and creative. Most would agree that fashion is rarely a fine art because it also fulfills a utilitarian function, but this should not necessarily preclude designers from being able to protect their investment in truly innovative designs, as artists and musicians are able to do. The law has traditionally treated each field of IP as an instance of discrete and mutually exclusive protection. Patents protect innovation in terms of functional design, while copyrights protect artistic expression. Finally, trademarks protect goodwill and reputation. These firm divisions between patentable and copyrightable subject matter have left the creative designers of utilitarian objects such as clothing without protection. The growth of the fashion industry has spawned an increased public awareness about fashionable designer products. In light of the popularity of certain designers or specific designs, design piracy has increased exponentially. Design piracy is the copying of a designer’s original designs, thereby enjoying the benefit of his/her artistic work at no expense. Copyists can thus free ride on the efforts of designers, thereby discouraging future investments in creative fashion design. Design piracy is not new; however, while it once took several years for a fashion to descend the price line into low-priced production, this progression is now nearly immediate. Technological advances have made it possible for design pirates to obtain another creator’s designs and manufacture duplicates overnight. Because of the pervasiveness of design piracy, the practice of copying is now considered commonplace in the fashion industry. Accordingly, the original designers of iconic fashion pieces stand to lose substantial amounts of revenue after expending the capital necessary to create them. This study compares Korea and the United States to understand the implications of Korea’s fashion design protections. This paper describes the research on fashion design protection practices in both countries, analyzes the present situation state of fashion design protection in these countries, and compares their legal principles related to fashion design protection. To this end, a literature review is presented that draws on relevant studies and national statistical data on both countries. First, the research on Korea and U.S. fashion design piracy can be summarized as follows. For fashion design in Korea, previous studies focus on the current status of counterfeit fashion goods, intellectual property protection in the fashion market and the protection of applied arts including fashion design. However, these studies have some limitations; many lack specific, concrete discussion on the current status of intellectual property and protection methods, instead providing general, comprehensive discussions. In contrast, studies in the U.S. context focus on the present situation of counterfeit goods in the fashion market, the nature of the fashion market, the essential features of design piracy and the legal protection of fashion design under the Design Piracy Prohibition Act. The breadth of studies on U.S. design piracy studies is much wider compared to those on Korea. In particular, as bills regarding the protection of design under copyright law such as DPPA or IDPPA are submitted to Congress, studies on the protection of design under legal laws are actively conducted. Fashion design protection in Korea versus the United States and the relevant legal principles can be summarized as follows. There are similarities and differences in the protection of fashion design across both countries. First, both countries are similar in terms of fashion design protection under patent law. Both countries provide some protection for fashion design under copyright law. Fashion design still lacks the criteria that have been established for literary works, but criteria are being developed to facilitate the protection of fashion design under copyright law. The most significant difference between the two countries regarding the protection of fashion design lies in the political efforts undertaken to protect fashion design. Unlike Korea, the United States has continued to enforce a separate law for the practical protection of fashion design to address two problems: first, the screening process generally takes a long time, which hinders the protection of fashion, and second, it is difficult to protect the middle area of design rights.

ONS and Intellectual Property

Doctrine of Exhaustion in Relation to Copyright Law in India and Parallel Imports

Unavoidable Aesthetic Judgments in Copyright Law: A Community of Practice Standard

The concerning numbers of copyright infringement in Indonesia’s creative industries raises a question on whether there is an obstacle in enforcing the law or whether there are loopholes in its regulatory framework. Comparatively, the United States as one of the developed countries, is rather firm and strict when it comes to protecting its intellectual property rights against other countries. While the ever-growing business sectors may play a significant role in contributing to the strict protection of copyright law for its economic growth, the United States’ legal framework regarding copyright must also play a predominant role in safeguarding its copyright protection. Therefore, the main goal of this article is to analyze the differences between the provisions stipulated in the copyright regulation in Indonesia and the copyright regulation in the United States. In addition, by conducting a comparison with the United States’ legal framework, this article seeks to reflect on what improvements shall be made towards the legal framework in Indonesia, in order to accommodate the protection of creators’ exclusive rights in creative industries more effectively.

Copyright law in India protects fashion designs that are considered unique artistic works. 2 Since 'arts works' is defined so broadly, this is obvious. 3 In 2006, the Delhi High Court made a distinction between "purely artistic works" and "artistic works meant to be applied to goods" in terms of the definition of the word. 4 Although it is not stated explicitly, it is reasonable to assume that the Designs Act, 2000 would apply to fashion designs as well. The Copyright Act and the Designs Act both provide legal protection for fashion designs. However, the fundamental premise of the Designs Act must be examined in relation to the underlying logic of industrial production. Indian law protects the works of fashion designers to a certain extent, and this study aims to shed light on the matter.

International law is ready for a period of renewal in this post-post-modern era. I predict this renewal will come from reviving classical doctrines, such as the positive-law doctrine of sources, and from revisiting formalism, (1) Such renewal will not be possible for the international law of evidence because there is no classical doctrine. Perhaps, as Charles Brower suggests, this is because of the differing civil and common law attitudes toward the rules of evidence, especially with respect to the burden of proof. (2) It seems to me, however, that we need a law of evidence in international law, especially for the international law on the use of force. Rules regulating force need to be as clear as possible and so do the roles that support the substantive principles, such as the law of state responsibility and the law on evidence--the clearer the rules, the less discretion available to states, and the greater the chance of actually restraining the use of force in international law. Plainly international law does not currently have a well-developed body of evidentiary rules on the use of force. According to Lobel: Questions involving the standards and mechanisms for assessing complicated factual inquiries are generally not accorded the same treatment given by the legal academy to the more abstract issues involved in defining relevant international law standards. Unfortunately, international incidents generally involve disputed issues of fact, and in the absence of an international judicial or other centralized fact-finding mechanism, the ad hoc manner in which nations evaluate factual claims is often decisive. (3) The International Court of Justice has made statements regarding what is credible evidence, evidence to be given weight in international cases. It has not, to date, made any straightforward, express statement of the standard of proof expected. We generally know which party carries the burden, but we do not know with certainty what the burden is. Still, there are indications in international law that the standard should be something like the clear and convincing standard found in the United States. In the United States, the burdens are generally characterized as (1) preponderance of evidence; (2) clear and convincing evidence; or (3) evidence beyond a reasonable doubt. Several judicial decisions, scholarly comments, and examples of State practice support the clear and convincing standard for evidence. For example, several self-defense cases, including the Oil Platforms case (2003) and the Nicaragua case (1986), indicate that the ICJ wanted more than a mere preponderance of the evidence to support claims of the United States that it acted in self-defense. On the other hand, there is no indication that the United States had to provide proof beyond a reasonable doubt. The closest category is clear and convincing. I do not think this can be said of the Corfu Channel case (1949) where the Court drew inferences from indirect evidence of Albanian officials' knowledge. This seems less than clear and convincing. The Democratic Republic of Congo case (2005) gives indications of both preponderance and the clear and convincing standard: 71. The Court thus concludes that, on the basis of the evidence before it, it has not been established to its satisfaction that Uganda participated in the attack on Kitona on 4 August. ... 91. The Court makes no findings as to the responsibility of each of the Parties for any violations of the Lusaka Agreement. It confines itself to stating that it has not received convincing evidence that Ugandan forces were present at Mobenzene, Bururu, Bomongo and Moboza in the period under consideration by the Court for purposes of responding to the final submissions of the D. …

The nineteenth century saw significant change in the context and focus of copyright law. During the eighteenth century, copyright laws had national effect, and were tailored to national interests. But during the nineteenth century, different political, industrial, and economic conditions led to demands for a wider outlook. British copyright law exemplifies the challenge of these changes. In 1837 the lawyer and author Thomas Talfourd introduced a copyright bill which expressed a bold vision of copyright reform including significant domestic consolidation and active international copyright arrangements. It took five years before any bill was passed, and its provisions were significantly modified in the process. The resulting 1842 Copyright Act did not achieve all the reforms that its visionary champion had hoped for, and it proved to have a number of defects which grew more obvious as the century wore on. Nevertheless it formed the basis of modern copyright law, and in relation to domestic law its groundwork is visible well into the twentieth century. International copyright took rather longer to develop, but it was of increasing importance. British writers wanted copyright protection not just in Britain itself, but in all places where there was a market for their books. The position in continental Europe, in the British colonies, and in America was therefore of great significance. There were many changes affecting copyright law during this period, which were often ardently contested. There was a great deal of significant legal activity, both in the form of legislation and also in case law. Given the extent of the market for British copyright works, this wider geographical legal context was of direct relevance to all Victorian writers and publishers—and to readers. One difficulty when reforming copyright law is the breadth and significance of the activities and themes that it touches. These include the nature of copyright (and of intellectual property more widely), literary and artistic culture in the broadest sense, popular education, the public interest, the publishing trade, international trade and competition, constitutional freedom and independence, and national character. It is challenging to take account of such issues, even in a domestic context. When other national positions are brought to bear on the outcome, the task of negotiating a copyright law that reconciles all interests can seem almost impossible. In addition, these matters will be subject to political and economic pressures, and touched by the general trends and changes which affect all societies. The debate regarding copyright’s proper aims and mechanisms was a fierce one in the Victorian era—as it had been since the first British copyright statute, the Statute of Anne 1710. It is a debate which is still very much continuing today.

Regulatory Failure of Copyright Law Through the Lenses of Autopoietic Systems Theory

The dominant explanatory/justificatory framework informing scholarly commentary on copyright law, policy and theory today – certainly in the US – is law and economics. From this perspective, copyright law exists to underpin markets in certain categories of ‘information good’ (copyright works). These markets in turn function to ensure that the private costs and benefits of information production and consumption line up (more or less) with the social costs and benefits of these activities, ie that ‘free-riding’ on the efforts of information producers is (more or less) curtailed. A widely held view is that this tradition of what might be called ‘copyright-law-and-economics’ is now deeply divided – between adherents to what Glynn Lunney has called ‘copyright’s incentives-access paradigm’ on the one hand, and proponents of what Mark Lemley has called the ‘full value’ or ‘absolute protection’ paradigm on the other. Absolute protection theorists tend towards the view that all uses of copyright works should be capable of being controlled (and so priced) by the right-owner; incentives-access theorists distinguish between uses the control of which would affect the information producer’s incentives ex ante, and those that would not, and recommend that copyright protection should extend to the former category only. This paper examines the features that are said to distinguish the two paradigms from each other, focusing especially on the approach each recommends to copyright’s scope (ie the issue of what uses of copyright works properly constitute copyright infringements). Particular attention is paid to the efforts of critical economists of intellectual property law such as Lemley and Brett Frischmann to retrieve and advance versions of the incentives-access paradigm with a view to counteracting the disadvantages for society they believe are associated with the absolute protection paradigm. Ultimately, however, I conclude that too much has been made of the distinction, and that the debate over which paradigm should have priority in determining the contours of copyright policy distracts attention from a more fundamental issue – the hegemony of economic analysis generally in organising the conceptual and normative universe of legal scholars working in this area. Thus while sympathetic to the impulse underlying the efforts of Lemley and Frischmann – a concern to resist the seemingly relentless expansion of copyright towards the horizon of absolute right-holder control of all uses of copyright material – I argue that their lingering adherence to the presuppositions of economic analysis has stymied their well-meaning efforts to account for the social value of ‘information’ in terms distinct from the merely economic measure of price. My overall aim here is to suggest that, because of its presuppositions, economic analysis – in whatever paradigm it may be packaged – offers at best a blinkered perspective on both copyright law and the field of social life that copyright law affects. I conclude by proposing Jurgen Habermas’s social theory as an alternative framework in relation to which critics of copyright expansionism might fruitfully orient themselves in the future.

<i>Google v. Oracle</i> Amicus Merits Stage Brief: Vindicating IP’s Channeling Principle and Restoring Jurisdictional Balance to Software Copyright Protection

The independence of the judiciary is one of the most important aspects of a liberal democracy governed by the rule of law. The judiciary adjudicates on legal and constitutional disputes in accordance with the law, which is a difficult task in and of itself. There are various factors that the judiciary takes into account when deciding upon different legal matters. When a court decides on a case unanimously, it is known as a unanimous judgement. However, the bench may also be divided, where judges do not concur with each other, resulting in a minority judgement. Over time, minority judgements often come to be voiced by the majority. Although dissenting judicial opinions have been recognized through legislative enactments and constitutional amendments and often go on to become the law of the land, they remain a neglected area of legal theory and jurisprudence, and thus need to be explored. Dissent is a sign of a healthy democracy; it is one of the most important aspects of the right to freedom of speech and expression. Judicial dissent has been a regular feature of constitutional courts in both India and the United States of America. Therefore, in this paper, the author analyzes the notion of judicial dissent and its relevance in human rights law before interrogating the process through which a once-neglected dissenting opinion can become the majority opinion and the law of the land. Finally, this study highlights the importance and contribution of judicial dissent in human rights law in India and the United States of America.

This comparative research paper examines the protection of performers' rights in copyright law, focusing on the right to be identified as the performer and the right to object to derogatory treatment of performances. Through an analysis of legal provisions, treaties, and case law, this study provides a comprehensive understanding of the scope, limitations, and enforcement of these rights in various jurisdictions. The research explores historical development, international standards, and challenges in implementing and enforcing rights. The findings contribute valuable insights for policymakers, practitioners, and performers seeking to enhance the protection of performers' rights within copyright law. The study aims to foster a balanced framework that preserves performers' creative contributions and maintains a harmonized copyright ecosystem. Key Words: Right, Performer, Artistic, Copyright, Protection