January 29, 2014 at 6PM
Yale Law School, 40 Ashmun St., Room A436. New Haven
The Cyberscholar Working Group is a forum for fellows and affiliates of MIT, Yale Law School Information Society Project, Columbia University, and the Berkman Center for Internet & Society at Harvard University to discuss their ongoing research. Each session is focused on the peer review and discussion of current projects submitted by a presenter. Meeting alternatively at Harvard, MIT, Yale, the working group aims to expand the shared knowledge of young scholars by bringing together these preeminent centers of thought on issues confronting the information age. Discussion sessions are designed to facilitate advancements in the individual research of presenters and in turn encourage exposure among the participants to the multi-disciplinary features of the issues addressed by their own work.
This month's presentations include:
(1) Copyright License Enforcement Through the Contract Lens
In the event that a licensee breaches a term in a copyright license, how should we determine whether he is liable for copyright infringement or mere breach of contract? Scholars arguing under the banner of consumer protection and users? rights argue copyright remedies should be limited to terms with a nexus to copyright?s traditional concerns, notwithstanding the difficulty of applying this standard or the risk of stifling innovative licensing models like those championed by the free software and free culture movements. Other scholars, seeking to preserve open-licensing models, urge a contractual approach that would award liberal copyright enforcement to terms denominated as copyright conditions, yet they do so without tending to users? rights or reconciling the punitive remedies available through copyright with contract law?s hostility towards supra-compensatory remedies.
These tensions could be defused by a new approach grounded in a richer account of contract law and its commitment to proportionality between breach and remedy. While contract law sometimes permits parties to opt out of proportionality, it burdens such attempts with high notice requirements. Many attempts at license enforcement via copyright would fail by this standard. This focus on proportionality and notice nonetheless points towards an alternate mechanism?license termination?as the appropriate means for licensors to vindicate their rights following breach of a purported condition. While use of the work past the point of termination might give rise to the full weight of the copyright regime, such liability would hinge on the licensor first providing affirmative notice to the licensee through the act of termination.
BJ Ard is a Postdoctoral Associate in Law and Thomson Reuters Fellow of the Information Society Project at Yale Law School. He is a graduate of Yale Law School, where he served as Managing Editor of *The Yale Law Journal*, and the University of Georgia. His current work focuses on intellectual property, contracts, electronic commerce, and consumer law.
(2) Traditional Knowledge, Genetic Resources and Intellectual Property Rights: An Agenda for Global Justice in the context of Nagoya Protocol
Most of the modern medicinal and industrial formulations are based on biological resources. The indigenous and local communities in many countries, particularly in developing countries, possess enormous amount of traditional knowledge about the uses of genetic resources for medicinal and other purposes. The Convention on Biological Diversity (CBD) and the Nagoya Protocol on Access to genetic resources and traditional knowledge are aiming at sharing benefits to the local communities for their efforts to conserve such useful biological materials and traditional knowledge. The Nagoya Protocol establishes rules for access and benefit sharing through national legal frameworks and international cooperation.
Apart from the implementation aspects, three issues that require deeper examination.
1. To what extent will traditional knowledge qualify for intellectual property protection?
2. To what extent granting of joint intellectual property rights is possible in benefit sharing, and how could it help the local communities in realizing their long term benefits?
3. With the development of synthetic biology, how will the Nagoya Protocol or the national laws monitor, trace and regulate the transfer of research results of biological materials through internet or email or other medium that will evade the whole idea of having a law on access regulation and benefit sharing?
This presentation will highlight the linkage between the protection of traditional knowledge, Intellectual property and global justice, salient features of Nagoya Protocol, select case studies on benefit sharing, and the relevance of ongoing work of WIPO Inter-governmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.
Pushpa Kumar Lakshmanan is a Fulbright-Nehru Postdoctoral Research Fellow (2013-2014) and a Faculty Associate at the Berkman Center/Harvard Law School, Harvard University, U.S.A. Pushpa is from the Law Centre-I, Faculty of Law, University of Delhi, India where he works as an Assistant Professor (Senior Scale).
(3) Copyright and Data-sharing Policies and the Market for Cartographic Information
We are increasingly experiencing the world through the eyes of the digital map. These maps tell us where to go, what to eat, what route to take and how to avoid traffic along the way. In this talk, I will explore how the quality of digital maps depends crucially on features of copyright/privacy laws that influence the sharing and copying of geographic data. Further, I will present some preliminary research that shows how we might apply tools of empirical economics to measure the impact that copyright and data-sharing policies have in the market for cartographic information.
Abhishek Nagaraj is a doctoral candidate at the MIT Sloan School of Management. His research is focused on digitization and copyright policy, specifically around measuring the economic impact that copyright laws have on digital knowledge production. His previous work isolates the impact of copyright law on moderating the benefits of the Google Books project for Wikipedia and he is currently working on the impact of copyright in shaping digital cartography.