Category Archives: Intellectual Property

Benjamin Sobel, ‘Elements of Style: Copyright, Similarity, and Generative AI’

ABSTRACT ‘You can’t copyright style’ is a shibboleth in today’s debate over generative AI. This slogan is, at best, meaningless. More likely, it’s wrong. Sometimes, what we call ‘style’ is copyrightable. ‘Substantial similarity’ is the doctrine that assesses when stylistic copying becomes infringement, but it is notoriously erratic, and judges find it especially hard to […]

Antill, Celik, Tian and Whited, ‘The Efficiency of Patent Litigation’

ABSTRACT How efficient is the US patent litigation system? We quantify the extent to which the litigation system shapes innovation using a novel dynamic model, in which heterogeneous firms innovate and face potential patent lawsuits. We show that the impact of a litigation reform depends on how heterogeneous firms endogenously select into lawsuits. Calibrating the […]

Carol Rose, ‘Property Law’

ABSTRACT Both detractors and proponents often describe property in individualistic terms, ignoring property’s character as a social institution that depends critically on participants’ respect of others’ claims. Informal property regimes are pervasive among small or specialized social groups, but neither informal property nor property law emerges unless resources become scarce. However, property law differs in […]

‘The Surprising Predictability Of Patent Eligibility’

Nikola Datzov and Jason Rantanen, ‘Predictable Unpredictability’, Iowa Law Review (forthcoming 2024), available at SSRN (26 February 2024. It is hard to think of a patent doctrine – or indeed any doctrine in IP law as a whole – that has received more critical attention over the past decade than patentable subject matter. In a […]

Freilich, Meurer, Schankerman and Schuett, ‘A New Approach to Patent Reform’

ABSTRACT Scholars and policymakers have tried for years to solve the tenacious and harmful crisis of low-quality, erroneously granted patents. Far from resolving the problem, these determined efforts have resulted in hundreds of conflicting policy proposals, failed congressional bills, and no way to evaluate the policies’ value or impact or to decide between the overwhelming […]

Gommers, Leppink and Schneider, ‘Round-up of European enforcement case law 2023’

INTRODUCTION While the world is again facing new challenges in 2024, with wars and conflicts around the corner and further away, as well as upcoming critical elections, law practitioners, including in the field of intellectual property (IP), are focused on the opportunities and challenges brought about by the adoption of artificial intelligence in the legal […]

Giuseppe Mazziotti, ‘“Authors”, not “content creators”’

In the past two decades, the emergence and exponential rise of social networking and interactive digital media has expanded our access to art, culture, knowledge and entertainment. In fast-growing and very competitive media markets, the daily practice and business models of social media platforms have made the concept of ‘content creator’ gain unprecedented traction, popularity […]

Dave Fagundes, ‘Who Is the Bad Art Judge? Aesthetic Nondiscrimination in Andy Warhol Foundation v Goldsmith

ABSTRACT Most commentary about Andy Warhol Foundation for the Visual Arts, Inc v Goldsmith focuses on fair use. This Essay highlights the significance of a different feature of the recent Supreme Court decision: the Warhol Court’s treatment of the doctrine of aesthetic non-discrimination. Famously articulated in Bleistein v Donaldson, this doctrine holds that judges’ opinions […]

Guido Westkamp, ‘Borrowed Plumes: Taking Artists’ Interests Seriously in Artificial Intelligence Regulation’

ABSTRACT The essay considers claims for extended property rights and the ascription of fundamental rights to artificial intelligence (AI) artefacts vis-à-vis human creativity. It argues, in principle, that recent developments in copyright and platform regulation (entirely unrelated to AI) have led to a meteoric rise of what may very broadly be referred to as claims […]

Michael Goodyear, ‘Infringing Information Architectures’

ABSTRACT Information architectures – systems that facilitate storing and sharing data and content – underpin daily life, from streaming sites like Netflix and Hulu to social media platforms like Instagram and TikTok. But since the printing press, these systems and their novel features have challenged the bounds of copyright law, leading to accusations that providers […]