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Does copyright violate the First Amendment? Professor Melville Nimmer asked this question forty years ago, and then answered it by concluding that copyright itself is affirmatively speech protective. Despite ample reason to doubt Nimmer's response, the Supreme Court has avoided an independent, thoughtful, plenary review of the question. Copyright has come to enjoy an all-but-categorical immunity to First Amendment constraints. Now, however, the Court faces a new challenge to its back-of-the-hand treatment of this vital conflict. In Golan v. Holder the Tenth Circuit considered legislation (enacted pursuant to the Berne Convention and TRIPS) "restoring" copyright protection to millions of foreign works previously thought to belong to the public domain. The Tenth Circuit upheld the legislation, but not without noting that it appeared to raise important First Amendment concerns. The Supreme Court granted certiorari. This article addresses the issues in the Golan case, literally on the eve of oral argument before the Court. This article first considers the Copyright and Treaty Clauses, and then addresses the relationship between copyright and the First Amendment. The discussion endorses an understanding of that relationship in which the Amendment is newly seen as paramount, and copyright is newly seen in the image of the Amendment.

This article examines user-generated content ("UGC") and the significance of re-inventions in the context of an increasingly user-centric internet environment and an information sharing society. It will explain the need to provide a statutory limitation in the form of an exception or exemption for socially beneficial UGC on the exclusive rights under copyright law. This will also have the effect of protecting the internet intermediary that hosts and shares UGC. Nascent but abortive attempts have been made by Canada to introduce just such a provision into her copyright legislation, while some principles and rules have also emerged from various interest groups and stakeholders in the attempt of providing a balanced approach towards UGC under the larger scheme of copyright objectives. Customary internet usages and norms relating to UGC will also be examined. These will be evaluated with a view to extracting useful guidelines to construct the parameters of a fair statutory limitation proposed for the legal reform of copyright law.

This book chapter considers the liability of entrepreneurs of 'user-generated content' (UGC) sites. These immensely popular fora, such as YouTube and My Space, enable their participants to post and view a great variety of content, not all of it in fact generated by the posting user. The legislative compromise worked out between telecommunications providers and content owners in the 1998 'Digital Millennium Copyright Act' provides the statutory framework, at once insulating the operators of UGC sites from debilitating copyright sanctions, while still affording meaningful relief to copyright owners. The statutory criteria to qualify for the section 512(c) safe harbor are designed to ensure that the beneficiaries of the safe harbor remain copyright-neutral with respect to the content they host. The recent District Court decision in Viacom v. YouTube, however, indicates that the statutory safe harbor may shield even the entrepreneur who anticipates – indeed "welcome(s)" – massive infringements so long as the entrepreneur lacks "actual or constructive knowledge of specific and identifiable infringements of individual items." While the statute makes clear that the entrepreneur should not be pressed into service as the investigative arm of the copyright owner, the Viacom decision does not simply decline to impose an obligation to seek out the infringers who may lurk within the user base. Rather, the decision arguably rejects neutrality to read into the statute a high degree of solicitude not only for online entrepreneurs whose businesses occasionally may accommodate infringing users, but also for those who effectively solicit infringers. If, by contrast, the neutrality principle does animate the statute, a court could appropriately apply that principle through a duty to take reasonable precautions to avoid apparent and repeat infringements.

Processes of regional trade integration may have an important impact on firms' strategies and forms of organization. This article provides an empirical case study of the impact of regional trade integration in the Andean Pact in the 1990s on the strategies and organization of British American Tobacco (BAT), using internal tobacco industry documents. BAT conducted an integrated strategy by lobbying on tax and tariff rates and intellectual property regulations, whilst simultaneously adapting its market strategies and attempting to modify its internal organization. The company incorporated substantial sales in illicit markets into its strategy, and launched new legal export operations within the region, in part to assert ownership over contested trademarks. It attempted to significantly modify its internal organization by better integrating its national operating companies on a regional basis, but was only partially successful in this due to resistance from its powerful Brazilian subsidiary. Changes in intellectual property rules also intensified competition between BAT and its main competitor, Philip Morris, culminating in a legal dispute between the two firms and leading BAT to develop a more coherent strategy on trademark ownership. These findings raise implications for understanding, and regulating, tobacco industry activities worldwide.

Do copyright limitations have the ability to promote creativity and innovation in an effective way? This question may initially sound astonishing because this incentive function is traditionally attributed to the exclusive rights and not to their limitations. However, it should not be forgotten that innovation often builds on existing creations. As a consequence, by depriving the copyright holder of the right to consent to certain acts, one might in turn encourage creative uses. In addition, it is possible for legislatures to draft limitations in order to guarantee that the permitted uses are not for free by providing for a just monetary return for right holders, for example by establishing a workable "limitation- based" remuneration system. In many European countries, uses legitimated by copyright limitations are often coupled with the payment of remuneration, from which the creators often profit in a considerable manner. Thus, this Article seeks to reflect on the limitations and exceptions to copyright from the perspective of the creators and their interests and, on this occasion, to express some free thoughts concerning the principle of exclusivity in copyright law.

The newspaper industry has recently experienced economic difficulty. Profits have declined because fewer people read printed versions of newspapers, preferring instead to get their news through so-called "news aggregators" who compile newspaper headlines and provide links to storied posted on newspaper websites. This harms newspaper revenue because news aggregators collect advertising revenue that newspapers used to enjoy. Some have responded to this problem by advocating the use of copyright to give newspapers the ability to control the use of their stories and headlines by news aggregators. This proposal is controversial, for news aggregators often do not commit copyright infringement. Accordingly, the use of copyright to help the newspaper industry would likely require amendment of the existing statute. This Article analyzes the constitutionality of such potential legislation under the First Amendment. As the Article will show, legislation that treats news aggregation as copyright infringement changes the traditional contours of copyright in ways that expose copyright to serious First Amendment scrutiny. This analysis will show that Congress does not have a completely free hand in choosing how, if at all, to help the newspaper industry. In fact, Congress must be careful not to unduly restrict the practice of news aggregation.

The newspaper industry has recently experienced economic difficulty. Profits have declined because fewer people read printed versions of newspapers, preferring instead to get their news through so-called "news aggregators" who compile newspaper headlines and provide links to stories posted on newspaper websites. This harms newspaper revenue because news aggregators collect advertising revenue that newspapers used to enjoy. Some have responded to this problem by advocating the use of copyright to give newspapers the ability to control the use of their stories and headlines by news aggregators. This proposal is controversial, for news aggregators often do not commit copyright infringement. Accordingly, the use of copyright to help the newspaper industry would likely require amendment of the existing statute. This Article analyzes the constitutionality of such potential legislation under the First Amendment. As the Article will show, legislation that treats news aggregation as copyright infringement changes the traditional contours of copyright in ways that expose copyright to serious First Amendment scrutiny. This analysis will show that Congress does not have a completely free hand in choosing how, if at all, to help the newspaper industry. In fact, Congress must be careful not to unduly restrict the practice of news aggregation.

This White Paper reviews the background issues for implementing the GEOSS Data Sharing Principles and recommends Implementation Guidelines to ensure the strongest possible framework for data sharing, consistent with both the spirit and the "letter" of the Principles. As recognized by the 10-Year Implementation Plan, "ensuring that such information is available to those who need it is a function of governments and institutions at all levels." It is therefore incumbent on governments and institutions participating in GEOSS to continue to develop and implement appropriate policies and procedures that enable and support the GEOSS Data Sharing Principles in fair and effective ways. The implementation approaches discussed here are intended to facilitate this process.

ABSTRACTCourt decisions in the 1990s are widely viewed as having opened the door to a flood of business method and financial patents at the US Patent and Trademark Office, and to have also impacted other patent offices around the world. A number of scholars, both legal and economic, have critiqued both the quality of these patents and the decisions themselves. This paper reviews the history of business method and financial patents briefly and then explores what economists know about the relationship between the patent system and innovation, in order to draw some tentative conclusions about their likely impact. It concludes by finding some consensus in the literature about the problems associated with this particular expansion of patentable subject matter, highlighting the remaining areas of disagreement, and reviewing the various policy recommendations.