INTERNATIONAL INTELLECTUAL PROPERTY LAW
SUMMER, 2002
The Jagellonian University, Cracow, Poland
Professor Susanna Fischer
E-mail: fischerATlaw.edu [Please note that you should type the @ sign in place of "AT" when sending me an e-mail. I am trying to discourage spammers by not posting my e-mail address in full]
SYLLABUS
I. Important Information:
A. Reading Materials
II. Class Meetings and Attendance
III. Finding Me
IV. Grading
V. About This Course
VI. Major Course Themes
WEEK ONE
UNIT ONE: Introduction to IPR: The Protection of Intellectual Property Under U.S. and Polish National Law
Class 1 (June 10, 2002): Introduction to International Intellectual Property
Required Reading: None
Click here to access Recommended Reading for Class 1
Discussion Questions for Class 1
1. What is intellectual property?
2. What is the standard bundle of rights that most nations worldwide agree make up intellectual property? To what extent does U.S. law protect these rights?
3. How, if at all, does intellectual property differ from real property? To what extent should its protection depend on whether it is a rivalrous or non-rivalrous resource? See note 1 at CB pp. 135-36
4. How important is intellectual property for international trade?
5. Why is it necessary and important for law students to study international intellectual property?
6. What do you think is the general difference in attitude between developed and developing nations over the scope of protection for intellectual property? Why?
Class 2 (June 11, 2002): Protection of Intellectual Property Under National Law I: Copyright Protection Under U.S. Law; Trademark Protection under U.S. Law
Required Reading:
Click here to access Recommended Reading for Class 2
Discussion Questions for Class 2
A. COPYRIGHTS UNDER U.S. LAW
1. What is a copyright?
2. How does an author secure copyright protection for a work under U.S. law. Is registration required? What are the benefits of copyright registration under U.S. law?
3. What is a "work of authorship" that is entitled to copyright protection under U.S. law? Give some examples of copyrightable works.
4. What is fixation? Give an example of a fixed work and an unfixed work.
5. Can an idea be copyrighted under U.S. law? Why or why not?
6. What is a copyright notice? Is copyright notice required for copyright protection under U.S. law?
7. What is the general term of copyright protection under U.S. law? (see U.S. Copyright Act §§ 303 - note that your CB is a tad out of date in this regard).
8. What is the source of copyright law in the U.S.? The Constitution? Federal law? State law? Common law?
9. What standard of originality is required for copyright protection under U.S. law? See the Feist case, excerpted at CB p. 16 et seq.). Is originality the same as creativity?
10. Is the amount of work required to create a work or the amount of time it takes to create it relevant to whether the work is entitled to copyright protection under U.S. law?
11. Is a photograph copyrightable under U.S. law? What about a photograph of a newsworthy event, such as Kennedy's assassination?
12. What is fair use? What factors are taken into account in determining whether fair use applies?
13. What are moral rights? Does U.S. law recognize moral rights? If so, to what extent?
14. What remedies are available for copyright infringement under U.S. law?
A. TRADEMARKS UNDER U.S. LAW
1. What is a trademark? What is an example? How does it differ from a patent or copyright? Is a trademark the result of intellectual labor or creativity? Why or why not?
2. How do trademarks relate to trade? How important are they to U.S. businesses?
3. What is the purpose of trademark protection under U.S. law? How does it differ from state law protection or common law protection?
4. What is the source of U.S. trademark law? The Constitution? Federal law? State law? Common law?
5. How does a person secure trademark protection under U.S. law? Is registration with the U.S. Patent and Trademark Office required? What are the benefits of federal registration under U.S. law?
6. What marks are eligible for federal registration? What about for state registration? Is use in interstate commerce a requirement for federal registration?
7. What is a generic mark? A descriptive mark? A suggestive mark? An arbitrary mark? A fanciful mark? Give an example of each. Are any of them eligible for trademark protection? If so which, and in what circumstances?
8. Why is it necessary to police trademarks? Did the Southern District of New York find that the ASPIRIN mark had become generic, as argued by defendants? Why or why not?
9. How is a trademark infringed? What factors will a court consider to determine infringement?
10. What remedies are available in cases of trademark infringement under U.S. law?
11. What is the fair use defense to trademark infringement? According to the Ninth Circuit, did this defense apply to defendant newspapers' use of the NEW KIDS trademark? Why or why not?
12.. How does trademark fair use differ from the fair use defense under copyright law?
13. What is the term of protection for a trademark under U.S. law?
14. To what extent are well-known or famous trademarks protected differently from other trademarks under U.S.?
15. What is trademark dilution? How does it differ from trademark infringement?
Class 3 (June 12, 2002): Protection of Intellectual Property Under National Law II: Patent Protection under U.S. Law; Trade Secret Protection Under U.S. Law
Required Reading
Click here to access Recommended Reading for Class 3
Discussion Questions
A. PATENTS UNDER U.S. LAW
1. What is a patent?
2. What are three basic types of inventions protected by U.S. patent law?
3. What are the sources of U.S. patent law? The Constitution? Federal law? State law? Common law?
4. What is the purpose of patent law? To secure an inventor his or her natural right in discoveries? A reward for expanding knowledge?
5. What are the requirements for patentability under U.S. law?
6. What is the difference between novelty and non-obviousness in the context of patent law? Why are both required?
7. Who is a person "of ordinary skill in the art" for the purposes of non-obviousness?
8. How does an inventor obtain patent protection under U.S. law? Is it expensive to obtain patent protection? Approximately how long does it take to obtain a patent?
9. Why is a design patent protected for less time than utility or plant patents?
10. What is prior art? In determining the scope of prior art, is the examiner limited to the U.S.?
11. How can a patent expire?
12. What are the claims covered by U.S. Patent 5,816,267 at CB p. 452 et seq ? Why is claim drafting important? Do the specifications add to the claims? Who is the inventor? Has the patent been assigned?
13. Under U.S. law the "best mode" of the invention must be disclosed (see 35 U.S.C. § 112). Does the barrette patent meet this requirement?
14. What is the issue concerning patentable subject matter that the U.S. Supreme Court addresses in Diamond v. Chakrabarty? How does Chief Justice Burger, writing for the majority of the Court, resolve that issue? What sources of law does Burger rely on in support of his opinion? Do you agree with the majority or with the dissent? Why or why not? Are you more swayed by arguments of social harm than the was Chief Justice Burger?
15. How does U.S. patent law apply to human cloning technologies? How should Congress address this issue, in light of the serious ethical objections to human cloning?
16. How is the infringement test for a design patent similar to for trademarks? What purpose is served by providing special patent protection for ornamental designs as opposed to relying on trade dress/trademark protection?
B. TRADE SECRETS UNDER U.S. LAW
1. What is a trade secret?
2. What are the sources of U.S. trade secret law? The Constitution? Federal law? State law? Common law?
3. What is generally required for a trade secret to be protectable? Is registration necessary?
4. How can trade secrets be misappropriated?
5. What is the term of protection for a trade secret under U.S. law?
6. What is the Economic Espionage Act and what additional protection for trade secrets does it provide over the Uniform Trade Secrets Act?
Class 4 (June 13, 2002): Polish Intellectual Property Law
Required Reading: Handout to be distributed
Click here to access Recommended Reading for Class 4
Discussion Questions: Handout to be distributed
UNIT TWO: Developing International Standards for Protecting Intellectual Property: The WIPO Treaty Regime
Class 5 (June 14, 2002): Introduction to WIPO and Its Treaty Regime
Required Reading:
Click here to access Recommended Reading for Class 5
Discussion Questions:
WEEK TWO
Class 6 (June 17, 2002): The WIPO Treaty Regime: Copyrights Under the Berne Convention
Required Reading
Discussion Questions
1. Why was the Berne Convention of 1886 created?
2. Which of the three groups of countries described at p. 297 of your Casebook prevailed in the final Berne Convention? What was the role of non-European countries in preparing the Berne Convention?
3. How many times has the Berne Convention been revised? How has it changed over time (in particular in the Brussels revision of 1948 and the Stockholm revision of 1967? How has it remained the same over time?
4. What is the purpose of the Berne Convention and the Berne Union? See Art. 1
5. Describe the basic strategy of the Berne Convention, in particular the idea of minimum standards and of national treatment. See Arts. 5 and 6, Art. 19, Art. 20
5. What works are protected under the Berne Convention? Must works be fixed to be protected under the Berne Convention? Are translations protected? Compilations like encyclopedias? Industrial Designs? Facts? See Art. 2, Art. 14bis, Art. 18
6. What are the conditions for protection under the Berne Convention (rights of attachment). See Arts. 3 and 4. See also Art. 5 on formalities.
7. What rules does the Berne Convention apply regarding the term of copyright protection? See Arts. 7, 7bis Does the European Union Copyright Directive of 1993 violate the Berne Convention?
8. What exclusive rights does the Berne Convention require as a minimum? See Arts. 6bis, Art. 8, Art. 9, Art. 11, Art. 11bis, Art. 11ter, Art. 12, Art. 14, Art. 14bis, Art. 14ter, Art. 15, Art. 16
9. What limitations on authors' rights does the Berne Convention permit? See Art. 10, Art. 10bis, Art. 13
10. What is the developing country protocol? Why was it included as part of the Stockholm revision of 1967?
11. What is the World Intellectual Property Organization?
12. The U.S. did not accede to the Berne Convention until 1989. Why did it take so long?
13. Is Poland a party to the Berne Convention?
14. What is the work for hire doctrine under U.S. copyright law?
15. Is the test for determining authorship used in the CCNV case consistent with the Berne Convention? Why or why not? Does the Berne Convention clearly establish whether a corporate entity can be an author?
16. How does French law, German law, and Greek law treat the question of authorship differently for employers/employees than U.S. or U.K. law? Which approach is better? Do these differences matter from the perspective of the international copyright system?
17. What is the doctrine of fair use under U.S. law? According to the Ninth Circuit in the Denny Video Case, was the district court correct in holding that fair use applied to KCAL's use of the Denny Videotape? Why or why not? Does this case comport with the Berne Convention? How about BSB's use of the BBC's copyrighted World Cup broadcasts: was this covered by the English equivalent of fair use ("fair dealing")?
18. How does fair use relate to moral rights? Should an author be able to challenge a fair use as a violation of his or her moral rights?
19. Is the VARA (section 106A of the U.S. Copyright Act) in compliance with the Berne Convention (See Art. 6bis). Why or why not?
Click here to access Recommended Reading for Class 6
Class 7 (June 18, 2002): International Trademark Protection Prior to TRIPS: The WIPO Regime (Paris Convention, Trademark Law Treaty, Madrid Agreement, Madrid Protocol, Nice Agreement, EU Trademark Directive, Community Trademark Regulation)
Required Reading:
A. Trademark Law
Click here to access Recommended Reading for Class 7
Discussion Questions:
1. How do the international challenges for trademark holders differ than for patent holders?
2. Historically, businesses have more often sought international trademark protection than patent protection? Why?
3. What is the significance for trademarks of the Paris Convention for the Protection of Industrial Property?
4. Is your assigned country a member of the Paris Convention? Click on: http://www.wipo.org/treaties/ip/paris/ for a list of members of the Paris Convention.
5. Does the Paris Convention define a "trademark"?
6. What are the weaknesses of the Paris Convention?
7. What is "national treatment" under the Paris Convention? Hint: see Art. 2
8. What does the Paris Convention provide with regard to the right of priority with regard to trademarks? Hint: see Art. 4.
9. What does the Paris Convention provide with regard to the independence of trademarks? Hint: see Art. 6
10. Are there any exceptions to the independence of trademarks under the Paris Convention? Hint: see Art. 6quinquies - the "telle quelle" principle
11. What restrictions does the the Paris Convention impose on national law regarding cancellation of trademarks for failure to use? See Art. 5(c)
12. What requirements, if any, does the Paris Convention provide for national laws concerning trademark renewal fees in Art. 5bis?
13. Under the Paris Convention, can national law require, as a condition for the validity of the assignment of a trademark, the simultaneous transfer of the business or goodwill to which the trademark belongs? See Art. 6quater.
14. What does Art. 6bis of the Paris Convention provide for "well-known" marks? Does this Article define what a "well-known" mark is?
15. In the South African McDonald's controversy, at CB p. 505, what was the basis for the challenge to McDonald's South African marks? How did the lower court rule on the challenge, and why? How did the Appellate Division of the Supreme Court of South Africa rule, and why?
16. What does Art. 7 of the Paris Convention provide? What about Article 8?
17. What do Arts. 9 and 10 of the Paris Convention provide regarding seizure of goods that unlawfully bear a particular mark?
18. What was the business of the plaintiff in the Wagamama case at p. 336 of your CB? What did plaintiff sue the defendant and what were the causes of action?
19. According to Mr. Justice Laddie, what was the proper test for trademark infringement under the 1994 United Kingdom Trade-Marks Act, classic or non-origin association? According to Mr. Justice Laddie, what does the EU Trademarks Directive mandate? Does the Paris Convention require that likelihood of confusion be determined on classic or non-origin association grounds?
20. If Benelux and the United Kingdom apply different tests to determine infringement, is this true harmonization? Why or why not?
21. What does the Trademark Law Treaty provide and what do you think is its goal?
22. What do the Madrid Agreement and Madrid Protocol provide for trademark registration?
23. To what degree is protection for trade secrets included within the protection that the Paris Convention affords against unfair competition in Art. 10bis? Does Art. 10bis set up any minimum standards for the protection of trade secrets?
CLASS 8 (June 19, 2002): The International Patent System Other Than TRIPS: The Paris Convention, The Patent Cooperation Treaty, the Patent Law Treaty, UPOV, The Budapest Agreement, The Strasbourg Agreement, the European Patent Convention/European Patent Office, and the Eurasian Patent Convention
Click here to access Recommended Reading for Class 8
Discussion Questions
1. According to Professor Moy, how do international patent protections allocate wealth between the country granting protection and the foreign patent owner?2, Prior to the Paris Convention, some nations tried to use patent law in protectionist ways. How did they do this?
3. Prior to the Paris Convention, was there international agreement concerning patent laws?
4. According to Professor Moy, the Paris Convention only addressed some issues regarding international patent protection, but left others unresolved. Which were left unresolved? Why were they left unresolved?
5. What minimum substantive standards for patent protection are required by the Paris Convention?
6. Does the Paris Convention define what qualifies as a patented invention?
7. To what extent must industrial designs be protected under the Paris Convention?
8. What is the national treatment requirement under the Paris Convention?
9. What does the priority registration requirement in Art. 4 of the Paris Convention require?
10. Make sure that you take a look at questions 1-8 at pp. 334-335 of your CB
11. Many OECD countries criticized the Paris Convention as being weak with regard to patents. What weaknesses do you see in the Paris Convention?
12. Are there any enforcement provisions in the Paris Convention? If so, what?
UNIT III: IP Becomes Part of the Multilateral Trading System: The TRIPS Agreement
CLASS 9 (June 20, 2002): THE TRIPS AGREEMENT: History, General Information, Enforcement
Required Reading:
Click here to access Recommended Reading for Class 9
Discussion Questions
1. What is TRIPS? What are the purposes of TRIPS? How does TRIPS relate to the WTO Agreement?2. Why were intellectual property rights included in GATT negotiations for the Uruguay Round?
3. Why do the authors of your CB call the 1994 adoption of TRIPS by more than half the countries in the world one of the "most significant developments in international intellectual property law of the Twentieth Century?"
4. Why does Professor Marci Hamilton describe TRIPS as outdated and imperialistic as well as overprotective? Is TRIPS fair to developing countries?
5. To what intellectual property does TRIPS apply?
6. To what extent does TRIPS incorporate existing intellectual property agreements, in particular the Berne Convention and Paris Convention?
7. Does TRIPS permit countries to enact higher protections for intellectual property law than the protection that is required under TRIPS?
8. What is the requirement of national treatment under TRIPS? How does this differ from the notion of national treatment under the Berne Convention and the Paris Convention? What exceptions does TRIPS permit to the principle of national treatment?
9. What is most-favored nation treatment under TRIPS?
10. What gaps has TRIPS filled? What disputes has TRIPS left unresolved?
11. What means for enforcement are provided in TRIPS?
12. What minimum procedural safeguards, remedies, and provisional relief must TRIPS members put in place for IPR disputes?13. What happens if a TRIPS member fails to put in place such required procedural safeguards, remedies or provisional relief?
14. According to the United States, what rights did Greece purportedly fail to provide in violation of its treaty obligations under TRIPS in the television piracy dispute?
15. How does the WTO dispute resolution procedure work? What happens if a case is decided against a defendant?
16. What special treatment does TRIPS provide for developing and least developed countries? How do you find out of a country is developing or least developed?
17. What is the USTR Special 301 List? What happens if a country is placed on this list?
Class 10 (June 20, 2002): TRIPS: Trademarks, Copyrights and Neighboring Rights
Required Reading:
A. Trademarks
B. Copyrights
Click here to access Recommended Reading for Class 10
Discussion Questions
TRADEMARKS
COPYRIGHTS
WEEK THREE
UNIT IV: Some Ongoing Controversies Involving International IP
Class 11 (June 24, 2002): TRIPS: Trade Secrets and Patents, The Dispute Over Patent Protection for Pharmaceuticals and the Biopiracy Controversy Over Protection for Scientific/Technical knowledge of indigenous communities
Required Reading:
A. Trade Secrets
B. Patents
Click here to access Recommended Reading for Class 11
Discussion Questions
TRADE SECRETS
1. What is industrial espionage?2. Why has international industrial espionage been rising in the last decade of the 20th century and into the 21st century?
3. Describe the extent of harmonization of national trade secrets laws as to what is a trade secret and what constitutes trade secrets misappropriation? How about state trade secrets laws?
4. Does the Paris Convention provide for the protection of trade secrets or confidential information? If so, to what extent?
5. Does NAFTA provide for the protection of trade secrets or confidential information? If so, to what extent?
6. Does TRIPS provide for the protection of trade secrets or confidential information? If so, to what extent?
7. Under TRIPS, can members publicly disclose clinical test data that was submitted to get permission to market pharmaceutical or agricultural products? Can members use test data that was publicly disclosed in other countries to grant third parties' permission to market such products? Can members use test data that was submitted in that country to get permission to market pharmaceutical products to speed approval of competing products?
8. What is the "inevitable disclosure" doctrine? How was it applied in the PepsiCo v. Redmond case? Is this doctrine broader than the minimum standards set out in TRIPS?
9. What is the Economic Espionage Act? Is it broader than the minimum standards established under TRIPS? Does its extraterritorial application get around the provisions of TRIPS?
PATENTS
1. To what extent does TRIPS require that pharmaceutical products be given patent protection? What kinds of inventions may be excluded from patent protection under TRIPS?
2. To what extent does TRIPS require that pharmaceutical products be given patent protection?
3. What are the pros and cons of giving pharmaceutical products that are novel and non-obvious patent protection? Do the pros outweigh the cons, or vice versa? Why? What do you think your assigned country's position is on this issue?
4. What is a "national emergency" that would warrant compulsory licensing under Article 31 of TRIPS?
5. What minimum patent rights does TRIPS require? What exceptions to these rights are permitted under TRIPS?
6. What does TRIPS require for patent applications?
7. What is the minimum patent term under TRIPS?
8. What U.S. requirement for patentability is analogous to the TRIPS requirement of an "inventive step"? Does footnote 5 adequately define "inventive step"? Can indigenous knowledge qualify for patentability under TRIPS by containing an "inventive step"? Can indigenous knowledge bar patentability for inventions such as those described on pp. 379-80 of your casebook (at I).
9. Can indigenous knowledge be new under Art. 27 of TRIPS?
10. Naomi Roht-Arriza has charged that "patentability under current intellectual property law is systematically biased against the innovation and knowledge of indigenous and farmers' communities." Do you think she would accuse the patent provisions of TRIPS of this bias? Why or why not?
11. Are the patent provisions of TRIPS morally indefensible as biological colonialism, as S.M. Mohamed Idris charges?
Class 12 (June 25, 2002): The Controversy Over IP Protection for Folklore and Cultural Property
Required Reading:
CB pp. 122-125, 1024-1033, 1046-1051
CB Supplement TRIPS Preamble (at 2-3), Berne Convention Art. 2 (at 74-75), Art. 15(4) at 84, U.S. Copyright Act section 103 (at 289), 201 (at 356), TUNIS Model Code Art. 2, 4, 5, 6, 17, 18 and Note 9 (583-610)
REQUIRED EXERCISE - You will be asked to represent your assigned country in an in-class debate over whether there should be a multilateral treaty protecting folklore/traditional knowledge. You should be prepared to debate the pros and cons of such protection from the point of view of your country. For helpful information on traditional knowledge in many countries, you may wish to consult WIPO Report on 1999-1999 Fact-Finding Missions on Intellectual Property and Traditional Knowledge at: http://www.wipo.int/globalissues/tk/report/index.html (April, 2001).
Click here to access Recommended Reading for Class 12
Discussion Questions:
1. What are the Ahay:da? Why did the Zuni want the Smithsonian to return the Ahay:da? What arguments did the Zuni make in negotiating with the Smithsonian? What arguments did the Smithsonian make in response?2. What does the Native American Graves Protection and Repatriation Act (NAGPRA) provide that mseums must do with regard to Native American artifacts? How is the Smithsonian treated under NAGPRA?
3. What is the difference between cultural patrimony and intellectual property?
4. What is the Morning Star Pole? Who may carve these Morning Star Poles? Who may sell these Morning Star Poles?
5. What did Terry Yumbulul do that upset the aboriginal clan?
6. Under Aboriginal law, did Mr. Yumbulul own the rights to the Morning Star Pole design and/or have the right to license its reproduction?
7. Was the design of the Morning Star Pole protectable under Australian copyright law?
8. Does Australian copyright law provide sufficient protection for Aboriginal communal interests in the reproduction of sacred works? Why or why not?
9. Who did Mr. Yumbulul sue and why? How did the Australian court rule in the Australian Morning Star case? Do you agree with the ruling? Why or why not?
10. What does the Aboriginal and Torres Strait Islander Heritage Protection Act of 1994 provide?
11. What are the similarities and differences between the communal ownership rights of the Zuni and the Australian Aborigines?
12. What is the Bellagio Declaration? What legal status does it have? Is it irreconcilable with the TRIPS Preamble?
13. Does the definition of a protected work under the Berne Convention permit communal ownership of protected works? Communal authorship?
14. What is folklore? Is folklore protected under the Berne Convention? Under TRIPS? Under the TUNIS Model Law?
15. What is the "Romantic" view of authorship and how is it expressed in the copyright laws of developed nations and in the multinational copyright treaties? Why are many indigenous peoples challenging this underlying assumption of a "romantic" author?
16. What is the difference between cultural patrimony and intellectual property?
Class 13 (June 27, 2002): The International Controversy Over Geographical Indications and Appellations of Origin
Required Reading:
CB pp. 402-412
Document Supplement: U.S. Trademark Act of 1946 (Lanham Act) §§ 1052(a) (p. 513), 1124 (p. 538), 1125 (p. 538-39), 1127 (definition of "trademark", "certification mark", "collective mark") (p. 543), Paris Convention Art. 1(2) (p. 42), 2 (p. 42), 9 (p. 52), 10 (p. 52-53), 10bis (p. 53), Madrid Convention, TRIPS Articles 22, 23, 24 (pp. 10-12)
Handout: Lisbon Agreement, Madrid Agreement for the Protection of False or Misleading Indications of Source on Goods. Lisbon Agreement is available online at: http://www.wipo.org/treaties/registration/lisbon/ and the Madrid Agreement is available onliine at: http://www.wipo.org/treaties/ip/madrid/index.html
Is your assigned country a member of the Lisbon Convention? See: http://www.wipo.org/treaties/registration/lisbon/ The Madrid Agreement? See http://www.wipo.org/treaties/ip/madrid/index.html
Click here to access Recommended Reading for Class 13
Discussion Questions:
1. What are some different ways that geographical terms be used on products in commerce?
2. How are geographical indications significant for international trade?
3. What is the difference between a geographical indication and a trademark?
4. To what extent does U.S. trademark law protect geographical indications?
5. What is an appellation of origin? To what extent does U.S. trademark law protect geographical indications?
6. What international agreements provide for the protection of appellations of origin and/or geographical indications? Which provide the strongest protection? The weakest protection?
7. Does TRIPS provide geographical indications for wines and spirits differently than other products? If so, how?
8. Should there be special protections akin to those in TRIPS Arts. 23 for other products, such as cheeses? Why or why not?
9. What ongoing negotiations are required by Art. 24 of TRIPS? What do you think are the current subjects of these negotiations?
10. Do questions 1--7 at CB pp. 402-403 and 1-6 at pp. 411-12.
11. What is the tort of passing off under British law? What is required to establish a valid cause of action for passing off?
12. Why did defendants want to call their elderflower beverage Elderflower Champagne? Describe plaintiff's argument that this constituted passing off? What is the best argument that defendants made in their defence?
13. Do you agree with the opinions of Lord Justice Gibson and Lord Justice Bingham in the English Court of Appeal in the Elderflower Champagne case? Why or why not?
Class 14 (June 26, 2002): The Controversy Over Database Protection
Required Reading:
CB pp. 369-377, 958-966
Document Supplement: TRIPS Articles 1, 3, 9, 10 (at pp. 3, 5-6) , Berne Convention Arts. 2(5), 2(8)(at p. 75), WIPO Copyright Treaty Art. 5 (at p. 94), U.S. Copyright Act of 1976 § 101 ("compilation", "computer program", 102, 103 (at pp. 283, 288-289), Draft WIPO Database Treaty (at pp. 240-243)
Re-read Feist case at CB pp. 16-23
Click here to access Recommended Reading for Class 14
Discussion Questions:
1. To what extent does U.S. copyright law provide protection to databases?
2. Would it be constitutional for Congress to enact legislation extending additional protection to databases? Why or why not?
3. What concerns does Doris Long have about sui generis database protection? Do you agree? Why or why not?
4. What approach does the European Union Database Directive take to database protection? How, if at all, does it differ from U.S. copyright law?
5. What databases are covered by the European Union Database Directive?
6. Does the EU Database Directive conflict with the TRIPS Agreement? Why or why not?
7. Take a look at the WIPO Draft Database Treaty in your Supplement. What changes, if any, do you think are required?
Class 15 (June 28, 2002): In-Class Examination (2 hours in length)
© 2002 Susanna Fischer. All Rights Reserved. Last Revised Sunday, June 16, 2002 04:11:04 PM