Tag Archives: 1997

December 12 / All Articles, Copyright

A Design For The Copyright Of Fashion

Fashion apparel is a multi-billion dollar industry that has no national boundaries. Designers, [1] retailers and consumers follow the game of international fashion. Within the last decade, consumer knowledge of specific designers has increased dramatically. Magazines and newspapers now cover the fashion industry as part of their national news coverage, focusing on the ever-changing world of creative designer expressions. [2] The general public has a ready command of the names and faces of fashion models and the designers for which they model. Countless television shows and feature films [3] exploit the fashion industry world. Consumers can now recognize the distinct style of their favorite designers: Chanel, jersey-knit double-breasted suits in contrast colors with trademarked brass buttons, and quilted leather accessories; Gianni Versace, colorful handprinted silks with reproduced 17th and 18th century illustrations; Issey Miyake, sparse deconstructed gender neutral garments in natural fabrics or highly unnatural polymers, which redefine both form and movement. [4]


In 1977, former Register of Copyrights Barbara Ringer stated that the issue of design protection is “one of the most significant and pressing items of unfinished business” of copyright revision. [5] This issue remains unaddressed today, even though the need for revision is even more significant, because garment designs lie along the fringe area of creative expressions that exhibit the same qualities as protected matter. This paper suggests that the traditional reasoning which denied certain articles copyright protection is no longer reasonable, and that protection should now be extended to garment designs. Further, this paper proposes solutions to the problems of implementing copyright for fashion and what effect copyright will have on the garment industry and consumers.


Jennifer Mencken*

November 14 / All Articles, Other Intellectual Property

The 1997 GATS Agreement On Basic Telecommunications: A Triumph For Multilateralism, Or The Market?

On February 15, 1997, sixty-nine governments signed an agreement seeking to liberalize the world telecommunications market – a market, according to Renato Ruggiero, the Director-General of the World Trade Organization (WTO), worth “well over half a trillion dollars per year.” According to Ruggiero, these sixty-nine countries making commitments account for more than 90% of telecommunications revenue worldwide. In a statement issued February 17, 1997, Ruggerio congratulated the governments for their “determination and foresight in bringing this negotiation to a successful conclusion.” Perhaps in acknowledgment of the many delays in concluding the agreement, Ruggiero said that not all the decisions had been easy. “But in the end,” he concluded, “member governments have put their faith in the multilateral process of the WTO, and the WTO has delivered.” [1]


Is that, however, truly the case? Is the WTO Agreement on Basic Telecommunications an agreement which the ever sober Economist said “[i]n scope alone … is the most ambitious yet [of the WTO]” [2] really a triumph for the WTO, the General Agreement on Trade in Services and the multilateral process as a whole?


At first glance, the agreement does seem to be rather a triumph. The services covered under the agreement extend broadly to almost every sector of the telecommunications market: voice telephony, data transmission, telex, telegraph, facsimile, private leased circuit services (resale), fixed and mobile satellite systems and services, cellular telephony, mobile data services, paging, and personal communications services (PCS). The liberalization of the services in these market sectors will occur not only in cross-border supply of telecommunications, but also allows for services to be provided through the establishment of foreign firms, or commercial presence in foreign countries, including “the ability to own and operate independent telecom network infrastructure.” [3] In other words, when the agreement is fully implemented, AT&T or MCI could be selling long-distance in Sweden and building a new fibre-optic network in El Salvador, while Telia (Sweden’s formerly national telecommunications carrier) could be selling network service to U.S. businesses, while building a new digital cellular network in Bulgaria with a joint venture partner such as Ericsson.


The agreement not only offers nearly comprehensive telecommunications sector coverage, but it offers extensive national market coverage as well. The sixty-nine countries signing the agreement include all the world’s industrialized countries, as well as forty developing countries from all regions of the world. The developing countries include large nations such as India, small nations such as Belize, as well as economies in transition from the former Warsaw Pact such as the Czech Republic. [4]


On the surface, therefore, the agreement does seem to be a victory for the WTO, and a reaffirmation the principle of multilateralism enshrined in the GATT. When one begins to look a bit deeper, however, and compares the actual legal text of the General Agreement on Trade in Services (born in 1994 with the GATT Uruguay Round Agreement), with the various incentives for countries to avoid liberalization, and recent developments in the world telecommunications market, a different picture emerges. It is a picture of the triumph of technology and market forces rather than a triumph of multilateralism; a picture in which the agreement seems to have come about not due to, but rather in spite of the GATS itself. In his statement, perhaps without even realizing, Director-General Ruggiero acknowledged this triumph:


Perhaps most importantly of all from a longer-term perspective, this deal goes beyond trade and economics. It makes access to knowledge easier. It gives nations large and small, rich and poor, better opportunities to prepare for the challenges of the twenty-first century. Information and knowledge, after all, are the raw material of growth and development in our globalized world. [5]

In the final analysis, the real triumph of this agreement belongs not to the WTO, but to the force of the information economy itself.


Eric Senunas *

October 28 / All Articles, Copyright

Intelligent Agents And Copyright: Internet Technology Outpaces The Law … Again

Intelligent agents, sophisticated computer programs that act on behalf of their users and adjust themselves to users’ behaviors and preferences, may answer the prayers of people who are increasingly overwhelmed by the sheer volume of information available to them on the Internet. [2] Instead of spending frustrating hours “surfing the ‘Net” in search of elusive information, users may soon employ intelligent software agents that gather information efficiently and without need for further human assistance, thereby freeing the user to spend time on more productive, or more leisurely, activities. [3] Still in its infancy, agent software “launches” itself into a computer system, a local-area-network, or the Internet, in order to perform a task or set of tasks requested by the user, such as retrieving information on a particular company or purchasing plane tickets at the lowest price. [4] If sufficiently sophisticated, intelligent agents may be able to “negotiate” with software agents resident in other computer systems, to coordinate, for example, a teleconference between two executives which does not conflict with the schedule of either person. [5]


Although agent technology is neither ubiquitous nor yet fully realized, it is nearly certain to play a major role in the way consumers and businesspeople deal with information in the years to come. [6] Indeed, agent software may cause people to rethink their entire approach to receiving information, creating distinctions between mere data and true information. [7] Don Norman, a research fellow at Apple Computer Inc., goes even further, arguing that we do not want data or information – we want knowledge. [8] Norman and others believe that intelligent agents will perform the tedious, time-intensive tasks of data collection and information retrieval, ultimately providing the user with readily-applicable knowledge and perhaps rendering obsolete presently “state-of-the-art” search paradigms, such as the unwieldy World Wide Web. [9]


Not surprisingly, any technology that promises to change fundamentally the way information is gathered will raise the eyebrows of the artistically or intellectually creative individuals (and their lawyers) who possess legally granted ownership rights in expressions of this information. [10] To be specific, intelligent agents may retrieve for users, via the Internet, documents, images, video or sound files that are the copyrighted material of another, thus subjecting the user, and/or the user’s employer, to potential legal liability. [11] This seemingly inevitable clash between copyright holders and the users of the Internet, compounded by the injection of intelligent agent technology, presents several novel copyright issues.


The core issue, and the issue in which the federal government, industry, academia, and individual computer users are all keenly interested at present, is when, or perhaps whether, the viewing, retrieval, transmission, or transfer of copyrighted files, data or images by users of the Internet constitutes copyright infringement. [12] This issue, until definitively resolved by the courts or legislature, will almost surely lie at the crux of numerous Internet-related copyright lawsuits that will be filed in the months and years to come. [13] Therefore, this paper must, at the outset, explore in depth copyright protection for files on the Internet.


Only after addressing this fundamental issue can we delve into our more creative investigation; that is, whether the retrieval of copyrighted computer files via the Internet by an intelligent software agent can be considered infringement by its owner, operator or initiator. Several ancillary issues will also be explored. For example, would the user’s employer, whether a corporation or academic institution, also be exposed to liability for copyright violations, under theories of contributory or vicarious liability? Additionally, would the company who designed, programmed, or owns the copyright to the source and object code for the intelligent agent software face potential liability when its software agents infringe upon copyrights?


Michael B. Sapherstein*

April 15 / All Articles, Computing, Copyright

Misunderstanding RAM: Digital Embodiments and Copyright

In the opinion of the United States federal courts, digital software embodied in a computer’s Random Access Memory (RAM) is sufficiently fixed to constitute a “reproduction” under the Copyright Act. As a reproduction, the creation of the RAM embodiment, or the loading of software into RAM, is a potential copyright infringement. However, a close reading of the Act and its legislative history reveals that a digital work embodied in RAM should not be considered a reproduction of the work. Furthermore, including digital works embodied in RAM as reproductions is a poor fit in light of the policy behind the Copyright Act. This would mean that every time a person opens a computer program, he or she might be infringing a copyright. The courts’ widely criticized finding can be explained, at least in part, by early law makers’ confusion about computer memory and inability to fit RAM into previous constructs. Courts and law makers have built on each others’ flawed or non-existent analysis of RAM embodiments as reproductions since the 1976 Act was being drafted. These approaches ignored the purpose behind the fixation requirement when interpreting it. Since digital embodiments in RAM do little harm to a copyright holder, their categorization as reproductions is not consistent with the policy behind the fixation requirement for reproductions.

In response to the intuitive incorrectness of the current law and its contradiction with the policy behind copyright law, critics have made several arguments against finding an embodiment in RAM to be an infringement. Critics argue that RAM embodiments should be afforded one of the defenses of fair use, copyright misuse, or per section 117(1), that the copying is an essential step in the program’s utilization. This paper, however, focuses on another argument born of the same policy considerations: That a RAM embodiment is not sufficiently fixed to be a reproduction under the Copyright Act’s definitions.