CPIP Roundup – August 29, 2019


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Greetings from CPIP Executive Director Sean O’Connor

With a new academic year beginning at Antonin Scalia Law School, the CPIP team continues to build on a productive summer of scholarship, events, and more. Our WIPO-CPIP Summer School on Intellectual Property this past June boasted 70 students from 30 countries for a two-week crash course on the law and policy of IP in order to help advance their careers. And our Fifth Summer Institute in Beaver Creek, Colorado, this past July brought together IP scholars, policy analysts, and professionals in the innovation and creative industries to discuss the current state of affairs and to work on translating ideas into policy.

Looking ahead, we’re getting ready for our upcoming Seventh Annual Fall Conference, which will take place at Scalia Law on October 4. We’ll also be co-hosting the 31st Annual Intellectual Property Section Seminar with the IP Section of the Virginia State Bar on September 20-21 at Scalia Law. We’re thrilled as well that CPIP Director of Copyright Research and Policy Sandra Aistars will continue her work with the law school’s Arts & Entertainment Advocacy Clinic, while I will be focusing more on the patent side as I lead the law school’s new Innovation Law Practicum.

I hope you’ve had a wonderful summer, and I look forward to seeing you at our future events!


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Registration Open for CPIP’s Seventh Annual Fall Conference on October 4

On October 4, 2019, CPIP will host its Seventh Annual Fall Conference at Antonin Scalia Law School in Arlington, Virginia. The theme of this year’s conference is The IP Bridge: Connecting the Lab & Studio, and it features keynote addresses by Professor Robert Merges, UC Berkeley, and Maria Pallante, President & CEO of AAP and former Register of Copyrights. 5 hours Virginia CLE, including 1.5 hours Ethics, available!

This unique conference will highlight how IP rights facilitate the creative and innovative processes and preserve the vibrant ecosystems that deliver innovative products and creative works to consumers. In addition to exploring how IP helps to improve and enrich the lives of creators, inventors, and the public, this conference will also discuss how various efforts to impose price controls in the creative and innovation industries threaten established markets and the creation of innovative products and artistic works.

Please click here to register. We look forward to seeing you in October!


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Spotlight on Scholarship

Kristen Osenga, Institutional Design for Innovation: A Radical Proposal for Addressing § 101 Patent-Eligible Subject Matter, 68 Am. U. L. Rev. 1191 (2019)

In this paper supported by a CPIP Leonardo da Vinci Fellowship Research Grant, CPIP Senior Scholar Kristen Osenga investigates the jumbled state of patent-eligible subject matter in the United States. Following an analysis of those entities currently wielding the power to make decisions on patent eligibility—and an assessment suggesting that other reforms will not solve the issue at its roots—Professor Osenga instead proposes and defends the revolutionary plan of turning over patent-eligibility decisionmaking authority to the courts.

Mark F. Schultz, The Market for Performance Rights in Sound Recordings: Bargaining in the Shadow of Compulsory Licensing (forthcoming)

In this forthcoming paper, CPIP Senior Scholar Mark Schultz discusses government regulations on licensing rights and rates for sound recordings, focusing on how their artificial nature divorces creators’ control and compensation from the marketplace. After exploring the negative impact of this arrangement on creators, consumers, and the market at large, Professor Schultz suggests policy changes for overhauling (and not merely recalibrating) the current, outdated system.

Jonathan M. Barnett, Antitrust Overreach: Undoing Cooperative Standardization in the Digital Economy, 25 Mich. Telecomm. & Tech. L. Rev. 163 (2019)

In this paper from our Sixth Annual Fall Conference, CPIP Senior Scholar Jonathan Barnett analyzes the benefits of standardization in ICT markets and the importance of IP rights and enforced contracts in keeping standardization relationships reciprocal rather than imposed by exterior monopolization. Professor Barnett looks at threats to cooperative standardization as posed by regulators and legislation—in particular, how implementation is favored over, and to the detriment of, innovation.


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Activities, News, & Events

CPIP Executive Director Sean O’Connor leads the law school’s new Innovation Law Practicum this fall. The Practicum will provide teams of students the opportunity to counsel entrepreneurs, creators, and inventors from the university’s internal and external communities. The course will teach students about entrepreneurship and commercializing innovation and creativity, as well as how to craft an overall legal strategy in the context of a client’s business, technology, and/or artistic vision. Anticipated projects include providing an initial assessment of legal issues and business planning, followed by specific legal services such as entity formation, securing IP, or drafting employment agreements upon mutual agreement with the client.

CPIP Director of Copyright Research and Policy Sandra Aistars heads the law school’s Arts & Entertainment Advocacy Clinic again this fall. The Clinic will continue its partnership with the U.S. Copyright Office by helping it and the World Intellectual Property Organization (WIPO) organize a conference on AI and copyright. The Clinic will also help mentor Native American musicians and promote cultural understanding via their music, work with a Grammy-nominated musician on a multi-disciplinary project, work with an author to register numerous books, advocate for the CASE Act, explore the intersection of copyright and constitutional law by representing parties interested in solving problems related to state sovereign immunity in cases of willful copyright infringement, and conduct an entertainment law education session and pop-up clinic with the Washington Area Lawyers for the Arts (WALA) during the DC Shorts Film Festival.

CPIP Executive Director Sean O’Connor joined Professors Lateef Mtima and Steve Jamar of the Institute for Intellectual Property and Social Justice (IIPSJ) in filing an amicus brief in Skidmore v. Led Zeppelin, a case currently before the en banc Ninth Circuit. The amicus brief argues that the courts should not improperly restrict composers to the “lead sheet” deposit copy for determining the scope of copyright protection for a musical composition. The brief explains how this position denies social justice to those whose backgrounds or musical styles preclude the use of traditional musical notation, and it argues that phonorecords or other contemporaneous documentation should be allowed as evidence of the scope of the copyrighted work.