Llewellyn Joseph Gibbons

Do as I Say (Not as I Did): Putative Intellectual Property Lessons for Emerging Economies from the Not so Long Past of the Developed Nations

Uncompensated intellectual property technology transfers, piracy, or just plain old fashioned free-riding, by most developing countries, especially the Least Developed Countries, is the paradigmatic example of “he who lights his taper at mine, receives light without darkening m[ine].” It often benefits the developing country without undue or any costs on the rights holders in developed countries. It may ameliorate suffering, promote development, and facilitate the ultimate creation of new markets where eventually the rights holders may exploit their intellectual property for a fair(er) price. One of the intended consequences of the WTO and the TRIPS Agreement was to close this route to development. Yet, the WTO and TRIPS Agreement’s promises of promoting technology transfer did not provide an effective alternative route to development. The new purported road to development developed countries granting incentives to promote technology transfer has been large is so far leading nowhere. Consequently, developing nations must once again look to the historic role-models of countries that have successfully developed and follow these well worn paths. Unless developed nations are prepared to make a significant financial commitment to economic development. This article presupposed a utilitarian justification for intellectual property protection, and concludes that properly managed piracy in the developing world does not affect the practical incentives provided by intellectual property rights in the developed world and its markets. If the developing countrys domestic-use market can be properly differentiated or segmented from the export, gray market, or parallel import markets in developed countries then developing countries may follow the rich example of the developed world and enjoy a sustained period of an intellectual property rights subsidy without affecting intellectual propertys utilitarian incentive structure. A period of intellectual property piracy seems to be a natural developmental stage on the road to becoming a developed nation, and once those goals have been met, the former outlaw pirate nation then becomes a zealous advocate for strong intellectual property protection internationally and domestically thus making strict adherence the norm. In the sum, this article merely encourages developed countries and rights holders in developed countries to be tolerant of a limited scope of intellectual property piracy in developing countries for just a little while longer.

Cyber-Mediation: Computer-Mediated Communications Medium Massaging the Message

The course of ecommerce is not always smooth. Disputes are inevitable. These disputes will have to be resolved if ecommerce is to develop to its full potential. This Article examines the feasibility of online mediation. It evaluates some modalities, presents cross-cultural mediation as a theoretical construct to describe online mediation, and recommends guidelines for the practice of online mediation. Mediation exists on a continuum from face-to-face to pure online mediation. Most of the legal literature evaluating the potential of online mediation can be best characterized as the battle of the anecdotes. No legal scholars have looked at the rich social science literature on the effects of computer-mediated communications. Part I of this Article analyzes the need for online mediation, the capability of online mediation to meet these needs, some common misconceptions accepted in the legal-mediation community, the technological infrastructure on which online mediation takes place, and identifies some of the associated real world legal issues raised by technology. Part II discusses differences between physical presence face-to-face mediation and online virtual mediation, examines a sample of the many scientific studies of computer-mediated communication, and postulates how these studies should inform views on whether and when online mediation is feasible. Part III describes some existing online mediation programs as models of what might be and describes various software programs to facilitate the mediation process. Since no article on mediation would be complete without a simulation, part IV applies this Articles lessons to a paradigmatic hypothetical.

Non-conventional Trademarks Under United States Law: An Unbounded New Frontier of Branding

This chapter explores the legal principles underlying trademark law and theorises the functions of a trademark in post industrial information society or in a “sharing economy”. At one time in the U.S. the legal boundaries of a mark were readily limited to visual words or symbols, and the scope of trademark protection was narrowly circumscribed to the specific of goods or services for which the mark served as an identifier in commerce. Later, trademark protection extended to complementary goods based on a judicial understanding of consumer perception in an evolving marketplace. Overtime, as mark holders found new ways to use designations in the marketplaces, courts (and the legislature) have extended trademark protection to protect what in at least some circumstances are in reality new business models. Consequently, trademarks are no longer just words and symbols or even (as we learned in the 1990s) a single colour(s) and trade dress. Today, trademark law also protects attributes such as motion, shape, sound scent, taste, and touch. The logical limit of modern trademark theory is the limit of the human organism’s sensory perception; and in time, as technology improves human perception, this frontier of trademark law too will continue to expand. Whether this unlimited expansion of the subject matter of trademark is good public policy is an open question.

Fake it, Till You Make It: A Justification for Intellectual Property 'Piracy'

Economic development in the least developed countries requires the use of or access to the more developed nations intellectual property without always compensating rights holders. This Article uses a neo-classical economic argument to support this theory of a right of access as being a stepping stone on the road to economic development and posits that this so-called piracy could be better conceptualized as an economically efficient form of foreign aid.

Termination of Copyright Transfers: The Author Spouse’s Last Laugh

The 1976 Copyright Act provides that an author may unilaterally terminate a transfer of copyright approximately 35 years after the initial transfer. In community property states, state law assumes that through the magic of the operation of state law, the author-spouse transfers the copyright that federal law initially vests in the author to the community property (marital) estate. Author-spouses are now entering the period when they may begin to terminate any putative copyright transfer to the community property estate or terminate other transfers that may be the basis for pre-or-post-nuptial agreements, property settlements, or dissolution decrees in divorce actions. This article will analyze whether an author-spouse may terminate the transfer of copyright in the context of a domestic relationship, and conclude that regardless of state law, private agreements, or court decrees that in the context of copyright termination, the domestic relationship, and state law, the author-spouse will always have the last laugh, and be able to nullify the carefully ordered state law based economic regimes and presumptions for domestic relations and the possible ensuing dissolution of the marital union.