Daniel J. Gervais

Of Silos and Constellations: Comparing Notions of Originality in Copyright Law

Originality is a central theme in the efforts to understand human evolution, thinking, innovation, and creativity. Artists strive to be “original,” however the term is understood by each of them. It is also one of the major concepts in copyright law. This paper considers the evolution of the notion of originality since 2002 (when one of the coauthors published an article entitled Feist Goes Global: A Comparative Analysis Of The Notion Of Originality In Copyright Law) and continues the analysis, in particular whether the notion of “creative choices,” which seems to have substantial normative heft in several jurisdictions, is optimal when measured in more operational terms. The paper considers the four traditional silo-like notions of originality used in national legal systems and looks at the major international treaties for guidance in defining the parameters of an international notion of originality. It analyzes the silos and suggests that they take the form of constellations which cannot be defined or compared hierarchically or indeed as completely separate notions; rather, they overlap in myriad ways.

TRIPS and Development

This brief chapter in the (forthcoming) SAGE Handbook of Intellectual Property examines available data and analyses concerning the impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) on development. The chapter considers distinctions among types of countries and industries, and the role of the World Intellectual Property Organization (WIPO).

Intellectual Property, Trade and Development

This work responds to the increasing need in many countries to better understand linkages between intellectual property, trade rules, and economic and social development, and to find new ways of implementing intellectual property rules and optimizing their effects. It provides a comprehensive analysis of the latest legal, economic, political and social research and advanced current thinking on the relationship between intellectual property and trade and development. With new chapters addressing access to educational resources and innovation in the developing world, the use of traditional knowledge as a source of innovation, and TRIPS, TRIPS Pus and Developments across the whole of South Asia, this fully updated second edition presents new insights and discussions from economists and social scientists and benefits from access to the latest metrics and analytical tools available. Contributors to this volume - Professor Robert Ostergard Jr, University of Nevada Professor Anselm Kamperman Sanders, Maastricht University Dalindyebo Shabalala, Maastricht, University Professor Susan Sell, The George Washington University Professor Daniel Gervais, Vanderbilt University Law School Professor Abbe Brown, University of Aberdeen Professor Carlos M. Correa, University of Buenos Aires Professor Ikechi Mgbeoji, York University Prashant Reddy, Lakshmikumaran & Sridharan Professor Ruth Okediji, University of Minnesota Professor Margaret Chon, Seattle University School of Law Doctor Susan Strba, University of Minnesota Daphne Zografos, WIPO Viviana Munoz Tellez, The South Centre, Geneva Professor Amir Khoury, Tel Aviv University

Keynote: The Landscape of Collective Management Schemes

This paper, based on a keynote talk at Columbia Law School, reviews the nature of collective management organizations (CMOs), their regulation, in particular the difference in the US regulatory regimes for performing rights organizations (PROs), digital transmissions of sound recordings and reprography. The paper reviews the incoherent rate-setting processes under consent decrees and sections 112 and 114 of the US Copyright Act. The paper also considers the role that CMOs can and should play in empowering new business models and modes of access to online material.

Current Issues in International Intellectual Property Norm-Making

This brief comment attempts to situate current research on, and issues concerning, the development of international intellectual property (IP) norms, and how this might affect bilateral IP negotiations between the European Union and its trading partners.

A Uniquely Canadian Institution: The Copyright Board of Canada

The Copyright Board of Canada, one of the first copyright administrative tribunals in the world, has moved from a simple adjucatory role to a regulatory role, adapting copyright rules to a fast-changing technological environment. Its history, role, comparative advantages and disadvantages are reviewed.

The TRIPS Agreement and the Changing Landscape of International Intellectual Property

China’s accession to the WTO and TRIPS heralded massive changes in Chinese intellectual property (IP) law. This book asks whether all aspects of Chinese law and practice are now TRIPs compliant. The study offers both Chinese and European perspectives.

Blockchain and smart contracts: the missing link in copyright licensing?

This article offers a normative analysis of key blockchain technology concepts from the perspective of copyright law. Some features of blockchain technologies—scarcity, trust, transparency, decentralized public records and smart contracts—seem to make this technology compatible with the fundamentals of copyright. Authors can publish works on blockchain creating a quasi-immutable record of initial ownership, and encode ‘smart’ contracts to license the use of works. Remuneration may happen on online distribution platforms where the smart contracts reside. In theory, such an automated setup allows for the private ordering of copyright. Blockchain technology, like Digital Rights Management 20 years ago, is thus presented as an opportunity to reduce market friction, and increase both licensing efficiency and the autonomy of creators. Yet, some of the old problems remain. The article examines the differences between new, smart-contract-based private ordering regime and the fundamental components of copyright law, such as exceptions and limitations, the doctrine of exhaustion, restrictions on formalities, the public domain and fair remuneration.

The Geneva Act of the Lisbon Agreement: Controversial Negotiations and Controversial Results

This chapter examines the historical process that led to the adoption of the Geneva Act of the Lisbon Agreement for the Protection of Appellations of Origin, and some of the debates that may arise as ratification and implementation of the new Act progress. The chapter also considers whether common law jurisdictions are likely to eventually join the updated Lisbon system and the potential motivations for doing so, as at the time of this writing, none were part of this system yet. The chapter observes that the bridge between Lisbon and the common law system has not yet been built because of the different approaches of the Old World and New World representatives to appellations of origin as governed by the Geneva Act. Old World representatives are normatively rigid and concerned with preserving traditional elements such as terroir while New World representatives are concerned with elements of genericness and economic value. Thus, the adoption of the Geneva Act of the Lisbon Agreement represents a clear chance to reconcile the Lisbon system doctrinally and render it more appealing to a larger array of countries.

Copyright: A Comprehensive Path to International Copyright Reform

In this bold and persuasive work Daniel Gervais, one of the world’s leading thinkers on the subject of intellectual property, argues that the international copyright system is in need of a root and branch rethink. As the Internet alters the world in which copyright operates beyond all recognition, a world increasingly defined by the might of online intermediaries and spawning a generation who are simultaneously authors, users and re-users of creative works, the structure of copyright in its current form is inadequate and unfit for purpose. This ambitious and far-reaching book sets out to diagnose in some detail the problems faced by copyright, before eloquently mapping out a path for comprehensive and structured reform. It contributes a reasoned and novel voice to a debate that is all too often driven by ignorance and partisan self-interest.