JIPEL Vol. 6 – No. 2

Fitting Marrakesh into a Consequentialist Copyright Framework

Fitting Marrakesh into a Consequentialist Copyright Framework

The Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities entered into force on September 30, 2016. The treaty aims to alleviate what has been described as the “book famine,” and has been lauded as a significant achievement in advancing the rights of and promoting equal opportunity for the visually disabled. Contracting states are required to implement copyright limitations and exceptions to facilitate access to copyrighted material for the global print-disabled community. This note will argue that, notwithstanding the treaty’s strong rights-based underpinnings, the treaty aligns comfortably with U.S. consequentialist copyright justifications. This note will also demonstrate the limitations of other copyright justificatory theories while discussing their incompatibility with the treaty’s philosophy.

Tomato, Tamatie? Revising the Doctrine of Foreign Equivalents in American Trademark Law

Tomato, Tamatie? Revising the Doctrine of Foreign Equivalents in American Trademark Law

The growing specter of globalization impacts industries from communication to transportation, resulting in an unparalleled proliferation of cultural diffusion unmatched throughout history. Naturally, this cultural diffusion has familiarized American consumers with foreign brands and foreign languages despite the obvious English dominance domestically, resulting in a trademark quagmire. Under the current American doctrine of foreign equivalents, trademark examiners and courts translate non-English words into English to determine whether they meet the general United States Patent & Trademark Office (USPTO) registration requirements. However, by treating English and non-English words alike, the pool of source-identifying marks is unnecessarily restricted. This note argues that a clear rule-like form that relaxes restrictions of registering descriptive foreign language marks through offering ‘descriptive’ foreign-language a presumption of eligibility for protection would mitigate inconsistent application of the doctrine. Such a rule would also limit costs on consumers and producers that are caused by restricting the range of available marks and inhibiting creative and communicative branding.

Through the Looking Glass: Photography and the Idea/Expression Dichotomy

Through the Looking Glass: Photography and the Idea/Expression Dichotomy

Copyright law has always expressed an idea/expression dichotomy, where copyright protection extends not to an idea of a work but only to work’s expression of that idea. Alas, this distinction walks a fine line with regard to non-textual and visual works. In particular, courts are prone to inconsistent outcomes and a violation of the fundamental precepts of copyright law because courts often succumb to shortcomings in grasping aesthetic theories of originality, realism, and ideas idiosyncratic to visual works. However, this dilemma may be solved within the existing framework of copyright law. This note argues that the solution should start by focusing less on visual works’ subject matter, but rather elements of the work, such as the originality and realism of the expression that clarify the author’s creativity. Moreover, the concept of an “idea” should be defined broadly as the residual locus of uncopyrightable elements in a work, rather than a cohesive concept that attempts to definitively pin down the “idea” behind that individual work. Taking this two-pronged solution would thus both recognize visual and photographic work’s unique niche within copyright as well as align these forms of art with copyright’s law’s ultimate objective of authorship protection.

A Framework for Assessing Technology Hubs in Africa

A Framework for Assessing Technology Hubs in Africa

This article explains the importance of technology hubs as drivers of innovation, social change, and economic opportunity within and beyond the African continent. It includes a thorough review and synthesis of findings from multi-disciplinary literature, and integrates insights from qualitative data gathered via interviews and fieldwork. It identifies three archetypes of hubs—clusters, companies, and countries—and discusses examples of each archetype using Kenya as a case study. The article then discusses potential collaboration, conflicts, and competition among these archetypes of hubs, and concludes with recommendations for future researchers.

Encryption and the Press Clause

Encryption and the Press Clause

Almost twenty years ago, a hostile debate over whether government could regulate encryption—later named the Crypto Wars—seized the country. At the center of this debate stirred one simple question: is encryption protected speech? This issue touched all branches of government percolating from Congress, to the President, and eventually to the federal courts. In a waterfall of cases, several United States Court of Appeals appeared to reach a consensus that encryption was protected speech under the First Amendment, and with that the Crypto Wars appeared to be over, until now.

Nearly twenty years later, the Crypto Wars have returned. Following recent mass shootings, law enforcement has once again questioned the legal protection for encryption and tried to implement “backdoor” techniques to access messages sent over encrypted channels. In the case, Apple v. FBI, the agency tried to compel Apple to grant access to the iPhone of a San Bernardino shooter. The case was never decided, but the legal arguments briefed before the court were essentially the same as they were two decades prior. Apple and amici supporting the company argued that encryption was protected speech.

While these arguments remain convincing, circumstances have changed in ways that should be reflected in the legal doctrines that lawyers use. Unlike twenty years ago, today surveillance is ubiquitous, and the need for encryption is no longer felt by a seldom few. Encryption has become necessary for even the most basic exchange of information given that most Americans share “nearly every aspect of their lives—from the mundane to the intimate” over the Internet, as stated in a recent Supreme Court opinion.*

Given these developments, lawyers might consider a new justification under the Press Clause. In addition to the many doctrinal concerns that exist with protection under the Speech Clause, the Press Clause is normatively and descriptively more accurate at protecting encryption as a tool for secure communication without fear of government surveillance. This Article outlines that framework by examining the historical and theoretical transformation of the Press Clause since its inception.
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* Riley v. California, 134 S. Ct. 2473, 2490 (2014).