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Volume 8 | Number 1

Volume 8 | Number 1 (Winter 2007)

You may download the Full Edition, or click on a citation below for the individual article. Journal content dating from 2005 is available on the Lexis-Nexis database. Content dating from 2006 is available on the HeinOnline database. Journal content, starting with Volume 8, is now available on the Westlaw database. (subscriptions required)

ORPHAN WORKS AND GOOGLE’S GLOBAL LIBRARY PROJECT
Steven Hetcher
8 Wake Forest Intell. Prop. L.J. 1

This article is about the unique connection that has emerged between copyright law’s orphan works problem and the pending controversy that Google, Inc., has created with its “Google Print” project. Delving more deeply into this connection can provide us with information concerning a core element of copyright law, the fair use doctrine. Moreover, the Google Print project is an important and instructive example of the orphan works problem. It is the author’s contention that these connected doctrines present a rational policy-based argument. A policy-based solution is important because it is a solution to the Google Print lawsuit and it is distinctive from what has been offered by all parties to the Google lawsuit and the various commentators.

GENERAL MOTORS V. CHERY: A JUDICIAL LESSON FOR FOREIGN OPERATORS IN CHINA
Luigi Russi and Oliver Mirsch
8 Wake Forest Intell. Prop. L.J. 39

The article deals with the issue of industrial design protection in China, which has become a rather “hot” topic after the case GM v. Chery regarding alleged copying of unregistered car designs. In particular, we have attempted to compare remedies available under the Chinese Unfair Competition Law, applying to unregistered designs, with those provided by the Patent Law, under which registered designs are instead protected. The authors’ analysis of the present protection scheme available in China for patented designs also draws on historical research on the evolution of Chinese patent regulations, and is backed by statistical data on enforcement. The authors conclude that China’s legal system does not scarcely protect industrial designs in general, but rather that the standards of protection differ considerably between the Patent Law and the Unfair Competition Law. Therefore, the outcome of GM vs Chery could have been different had GM’s designs been patented.

TRADITIONAL KNOWLEDGE, GENETIC RESOURCES & DEVELOPING COUNTRIES IN ASIA: THE CONCERNS
Yousef Ishaq Khan
8 Wake Forest Intell. Prop. L.J. 81

Genetic resources and related traditional knowledge constitute the biological basis for many future agricultural and medicinal developments. Their transfer from developing to developed countries over centuries has been viewed as an example of exploitation, commonly termed as ‘biopiracy’. Developing countries that claim ownership to a large reserve of the earth’s pool of genetic resources and related traditional knowledge view the exploitative tendencies of the gene poor but technologically rich developed countries, with skepticism. This article examines current patterns and finds that developing countries in Asia are equally active in protection of their knowledge and resources from misappropriation by the developed countries, through framing and implementing laws at national levels. Mindful of the impact on both, economies and cultures of these developing countries, the author also subjects the various international intellectual property rights regimes to critical scrutiny. Thus by presenting a wide range of Asian experiences and perspectives on the legal protection of genetic resources and related traditional knowledge, this research provides the reader with ample food for thought in designing any possible solutions for even effective protection.

A HEAVY BURDEN: A PROPER APPLICATION OF COPYRIGHT’S MERGER AND SCENES A FAIRE DOCTRINES
Andrew B. Hebl
8 Wake Forest Intell. Prop. L.J. 128

One of the least clearly defined concepts in copyright law is the idea/expression dichotomy, which states that protection for works only extends to expression, not ideas. It has been very difficult to distinguish between these two concepts. Complicating matters, courts have disagreed in infringement actions over which party should bear the burden of proof regarding the idea/expression dichotomy in general. Courts have classified it as a question of bar to copyrightability or defense to infringement, but the real question is who bears the burden of proof. Should the plaintiff be required to show that his work consists of protectible expression, rather than unprotectible ideas, or should the defendant be required to show that what she took from plaintiff was not protectible? Because of the difficulty in distinguishing between idea and expression, the party who ultimately bears the burden is in trouble. “Whoever has to prove the unprovable facts is likely to lose.” The courts’ present disagreement ought to be resolved in favor of increased expectations for potential plaintiffs. In order to best serve the interests of copyright law, in light of the ever increasing statutory protection afforded copyright owners and the plain language of the copyright statute itself, courts should require plaintiffs to show that their work is protectible despite the merger doctrine and scenes a faire.