JIPEL Vol. 5 – No. 1
Vol. 5 – No. 1 (Fall 2015)
The NYU Journal of Intellectual Property and Entertainment Law is proud to present Volume 5 Issue 1 of the Journal.
A recurring tension in international law is whether countries ought to strive for uniformity when developing legal regimes in any given subject matter, or ought to instead construct systems that are uniquely adapted to their particular circumstances. This foreword explores several areas in which that tension plays out in the context of intellectual property rights (IPRs) and also previews how the tension emerges in two of the articles featured in this journal issue.
Since the beginnings of the modern fragrance industry, fragrance manufacturers have relied on secrecy to protect information about distillation techniques, product composition, and other elements of the production process. In the last century, however, increases in employee mobility and improvements to reverse engineering techniques have undermined the fragrance industry’s reliance on trade secrecy to protect its proprietary information. Patents and copyrights are similarly of limited efficacy as a means of protecting this information. Fragrance manufacturers may have some recourse in trademark and unfair competition law, however, specifically in the context of multisensory trade dress.
Climate change is a pressing issue confronting the global community. The rapid development and diffusion of clean technologies (i.e., technologies necessary for adapting to or mitigating climate change) must be a central part of the solution. However, a stalemate has persisted in global climate change negotiations at the United Nations, caused by diverging views regarding the role of intellectual property rights “IPR” in the international transfer of clean technologies. Developed nations insist on strong IPR for clean technologies, while developing nations claim that IPR is a major barrier to the international transfer of clean technologies and demand to remove or reduce IPR for clean technologies. This article explores two questions: (1) Is the existence of IPR a major barrier to the international transfer of clean technologies, and (2) why has the international transfer of clean technologies to developing nations been limited? Analyzing evidential data available, this article concludes that IPR probably has not been a major barrier to the international transfer of clean technologies. However, sustainable international transfer of clean technologies requires the joint efforts of developing and developed nations. To prepare for sustainable international transfer of clean technologies and to advance the effort for addressing climate change, this article proposes a new paradigm based on domestic innovation, international aid and international technology collaboration.
This article highlights the emergence of a new dialectics between the protection of intellectual property and public health in international investment law and arbitration. International investment law is a vital area of international law, which has furthered the protection of intellectual property, considering it a form of investment and providing intellectual property owners access to investor-state arbitration. While investor–state arbitration constitutes a major development in international law and facilitates the access of foreign investors to justice, it may endanger the fundamental values of the international community as a whole, unless arbitrators duly take into account their role as “cartographers” of international law within their role as “adjudicators.” Have arbitral tribunals taken public health considerations into account when adjudicating pharmaceutical patent-related cases? If so, have they considered public health either as an exception to investment treaty standards or as a part of the interpretation of the same standards? What techniques are available to avoid regime collisions between international investment law and other fields including public health law? This article offers a primer on recent investment disputes concerning pharmaceuticals. The underlying assumptions of this article are that adjudication is a mode of governance, and it has a fundamental importance with regard to the concrete implementation of a given legal regime. The article argues that arbitrators should not put an excessive emphasis on the private interests embodied by pharmaceutical patents, but adequate consideration should be paid to the public interest equally embodied in these rights.
This note argues that morals clauses remain important in talent contracts, despite the liberalization of the modern moral climate. Morals clauses, express and implied, are employed to terminate a contract when talent misbehaves. These clauses have a storied history, but are still relevant despite the considerable changes in social norms since they were first implemented. These clauses are applicable to various sectors of the entertainment industry, including motion picture, television, athletics, and advertising. Their popularity has also led to the implementation of reverse morals clauses, which protect the employee from improprieties of the employer. The outgrowth of Internet and social media has only made such clauses more important, by providing more opportunities for talent misbehavior and public embarrassment. This note finds that morals clauses remain relevant, effectual, nuanced, and flexible, well suited to adapt to a changing legal and cultural landscape.
This note evaluates the applicability of copyright to web design. Web design affects the appearance and user experience of a website, but excludes content such as the text or images. Web designers have an incentive to standardize websites to ease the learning curve of users who are new to a given website, which is strongly counterbalanced by internal and external pressures to perform creatively. Copyright law has been ambiguously applied to web design. Problems with copyrightability stem from the hurdles to determining what design is original, as well as the exclusion of functional elements. Even if a web design is copyrightable subject matter, successfully proving infringement is difficult. In several contexts where copyright protection might be an issue, this note finds that copyright is unnecessary to resolve disputes. The copyright symbol in the footer of websites can serve as a notice that socially pressures and deters potential copiers, protecting website design and incentivizing innovation, even in the absence of legal certainty.
The protection of industrial design in the United States has been criticized for its ill-aligned functionality doctrines, as an inefficient incentive scheme, as well as for its costly and prolonged rights acquisition periods. This note explores the scope of U.S. industrial design protection in copyright, trademark and design patent, concluding that design patent provides the strongest basis to rebut these criticisms. Not only does the positive enforcement of design patents speak to the protection’s strength, but the normative scope of the right is calibrated to incentivize innovative designs. A wholesale reform of U.S. industrial design is not required to address cost and time criticisms; compliance with certain national and international obligations is sufficient.