Abstract

     The paucity of case law involving copyright ownership of materials prepared by university faculty reflects the reality that copyrightable works created by academics have not historically generated large amounts of money. Thus, early cases involving the work product of professors reflected the custom of faculty ownership of copyrighted materials. Not surprisingly, universities were far more concerned with the ownership of more profitable patentable inventions. As the twenty-first century dawns, however, university interest in copyright ownership of works created by academics is intensifying, largely as a result of the potential financial windfalls associated with distance education. Both faculty and university administrators are reconsidering copyright ownership as technological advances provide universities with the capability of using on-line course materials for multiple semesters without providing additional compensation to the faculty who actually produced the subject matter of the course materials. Indeed, the escalating competitive environment in higher education fosters the growing economic influence of distance learning.
     Distance education is proliferating, although legal education has been comparatively slow to adapt to this trend. In 1998, Concord University of Law, the first exclusive on-line law school, opened, engendering controversy from the outset. When renowned Harvard law professor Arthur Miller was commissioned by Concord to produce a series of videotaped lectures on civil procedure to be delivered through streaming video from Concord's web site, Harvard modified its faculty manual so that its professors would be prevented from teaching, researching or acting as salary consultants to an Internet on-line school absent special permission. Despite the endorsement of high-powered academics such as Arthur Miller and others, the ultimate influence of Concord on the legal academy remains unknown at this point. One particularly formidable obstacle to the ultimate success of Concord may be the ABA's reluctance to offer Concord accreditation in light of its refusal to consider Concord as anything more than a correspondence school. As such, Concord is barred from accreditation consideration under the ABA Accreditation Standard 304(f).
     Despite the legal academy's reluctance to embrace distance education, the number of institutions gravitating toward on-line courses mandates attention to important legal issues surrounding the use of this educational medium. The creation of on-line courses presents many novel copyright issues. For example, one especially timely issue concerns the extent to which the creators of on-line courses can avail themselves of the fair use doctrine. This Article, however, focuses on the ownership and authorship issues surrounding the creation of on-line courses. Varied practices exist regarding these issues. For example, at one institution, the University of North Texas, professors are paid royalties when their on-line materials are used by other instructors and are awarded some of the tuition generated from the courses they create. Still, such arrangements are rare. More typically, authorship and ownership of on-line course materials are governed by university intellectual property policies, in which copyright issues are gaining prominence. Some institutions treat copyrighted subject matter similarly to the way in which patentable subject matter was historically treated: the faculty is considered the legal author but the university requires an assignment of rights in any work made with significant university resources. Alternatively, institutions create for-profit entities, and hire faculty and students as employees of these entities so that their works are viewed as having been produced within the course of employment for the corporate entity. Significantly, the American Association of University Professors (AAUP) has prepared a Draft Statement on Copyright advocating that faculty members should be the owners of 'courseware' they develop for distance education programs. Still, the validity, and ultimate enforceability, of any university policy governing copyrighted material depends on the relevant copyright law. As this Article demonstrates, the relevant copyright law governing the ownership and authorship of on-line courses is murky and largely untested.
     Of course, different models exist regarding faculty creation of on-line course materials, and the appropriate resolution of the authorship and ownership issues can differ depending on which model is at issue. For example, when a faculty member prepares an on-line course completely independently, and then places it on the university server, there is far less of a legitimate ownership claim by the university than if the university asks the faculty member to create the course. Additionally, some colleges will give a faculty member a particular amount of money to create the course. This scenario probably results in the university having a stronger ownership interest.
     Part II of this Article explores the parameters of copyright protection generally, and specifically how copyright applies to the creation of on-line course materials. Part III explores issues surrounding the general question of how the doctrines determining the recipients of copyright's incentives should be applied in the context of on-line course materials. Part IV offers some concluding observations.  

Abstract

     Since late 1999 more than 3,000 quasi-arbitral proceedings have been conducted to address disputes involving Internet domain names. These proceedings are governed by the Uniform Dispute Resolution Policy (UDRP) adopted by the Internet Corporation for Assigned Names and Numbers (ICANN). A UDRP proceeding is instituted by a trademark owner who wishes to challenge a domain name. If the UDRP panel orders that the domain name should be transferred to the trademark owner, that order will be implemented unless the domain name registrant promptly commences a lawsuit against the trademark owner. Apart from this provision for external judicial review, there is no appeal mechanism within the UDRP.
     Domain name registrants have taken advantage of the right to seek judicial review in a small but significant number of cases. At least two U.S. courts thus far have held that they are not bound by UDRP decisions, although the legal effect of these decisions remains unclear. Courts normally apply an extremely deferential standard of review to arbitration decisions. As this Article will explain, however, courts should be very hesitant to place much reliance on the conclusions of UDRP panels.
     Part I of this Article discusses the scope of judicial review of arbitration decisions generally. Part II describes ICANN's UDRP process, including some of the major differences between UDRP proceedings and conventional arbitration. Part III examines the experience to date of courts that have addressed disputes subject to parallel UDRP proceedings. Finally, in Parts IV and V, the Article discusses substantive and procedural objections following UDRP decisions in legal proceedings, and concludes that a de novo standard of review is warranted.

Abstract

     Leonore Wexler was diagnosed with Huntington's disease in 1968. She was not the first member of the Wexler family to be diagnosed. Her daughter, Nancy, had already witnessed several other relatives succumb to this devastating disease, but it was her mother's diagnosis that spurred Nancy to action. She set forth on a journey to discover the genetic cause of Huntington's disease.
     Nancy's search led to a remote region of Venezuela, near Lake Maracaibo where she and her team found one family that suffered an extremely high incidence of Huntington's disease. By meticulously mapping the genealogy of that family, including thousands of members stretching back over 100 years, and working closely with genetic researchers, in 1993 Nancy and her team eventually identified the specific gene, and the mutation in that gene, associated with Huntington's disease.
     The long and arduous path taken by Nancy Wexler and her colleagues has since opened the door to the discovery and mapping of numerous other disease genes. The goals remain consistent but the pace of discovery has increased rapidly. On February 12, 2001, a full two years earlier than expected, researchers with the Human Genome Project announced that a rough map and sequence of the entire human genome had been completed. Technological strides arising from the Human Genome Project promise to change the face of science, and the face of humanity.
     Interpretation of the human genome promises a wealth of benefits to humanity including accurate genetic testing and more effective therapies and treatments for genetic diseases. As with other technologies, such progress comes at a price. A myriad of concerns has surfaced surrounding genetic research and the possible misuse of genetic technology. Those concerns include: fears of genetic discrimination in insurance and employment; regulation of genetic therapy directed at reproductive cells, which could influence future generations; issues related to reproductive choices and autonomy; assuring equal access to genetic technology between the rich and the poor; and genetic enhancements, including human cloning.
     Despite the current achievements, understanding the full human genome requires a great deal of additional research into deciphering the complex instructions hidden in our DNA. Virtually every cell in a human body contains the full set of instructions necessary to create that particular individual. These instructions are encoded in twenty- three pairs of individual DNA strands known as chromosomes. These chromosomes carry over 30,000 encoded genes. Each gene performs a specific function, some may perform several, but the functions of only a few genes are currently understood. The Human Genome Project has provided a map of chromosomes, but complete understanding of the functions of each and every gene will be achieved through the use of other research approaches. One necessary approach is population-based genetic studies: studies that rely on the large-scale collection of genetic, genealogical, and medical data from thousands of individuals.
     Population-based genetic studies come with their own set of concerns. Connecting the DNA sequences of individual genes within the human genome to the various diseases and traits for which they encode will require thousands, even millions, of individual research subjects. Such research requires the divulgence of information that strikes at the very core of our most intimate and private lives. Research participants' DNA samples will be collected, genealogical histories of their families gathered, and their confidential, individual medical records scrutinized. In order to find willing participants for privacy-invasive research, two major issues must be addressed: informed consent and confidentiality of research records.
     This Comment explores several of the proposed and ongoing population-based studies in Iceland, Estonia, Italy, Britain, and the United States. Guidelines that have been drafted for two of these studies will be analyzed against a background of international law relating to informed consent and confidentiality in regard to medical research. Part II provides a brief overview of the Human Genome Project and details the reason population-based genetic studies are necessary. Part III explores several of the proposed and ongoing population-based genetic studies around the world. Part IV provides a framework of international law against which these projects should be analyzed. Part V focuses on an analysis of two specific projects, in Iceland and in Estonia, and compares the national laws authorizing these projects against the international laws discussed in Part IV. Finally, Part VI concludes with recommendations designed to properly balance the legitimate research goals of population-based genetic studies with the individual rights of the research subject.  

Abstract

     The lure of biotechnology investment has finally transformed Europe from passive recipient to active provider of biotechnology. For three decades, the United States appeared as the harbinger of the biotechnology industry's development, a position now gradually challenged by emerging European players. Great Britain appeared as the first such player in the 1980s. Germany then followed in 1995 with its BioRegio Wettbewerb, a contest for government funding to develop research centers or "biotech clusters." Germany continued with the creation in 1997 of its own high technology market, Der Neuer Markt, which offers German venture capital funds a market to trade shares of biotechnology start-up companies. As a result, the German biotechnology industry increased by 150 percent from 1996 to 1999. In the same period, France, Italy and other European countries established Nasdaq-like financial markets which, as their U.S. counterpart, attract venture capital and promote biotechnology start-ups. Further, the French government increased its investment in biotechnology research from $26 million to $260 million in the last ten years. Despite such efforts to create an attractive market, total biotechnology investment in Europe reached only $579 million in 1999, less than half of the corresponding investment in the United States, but reflecting an increase of 53 percent over 1998.
     Such an overview helps underscore the tensions over the ethical and economic issues that accompany the growing importance of the biotechnology industry to Europe. This Comment relies on the University of Edinburgh's controversial European Patent (EP) 0695351 "Isolation, Selection and Propagation of Animal Transgenic Stem Cells," granted on December 8, 1999, to examine some of these tensions. Part II presents Europe's current position on the patenting of genetically modified organisms by studying the material articles of the European Patent Convention (EPC) and the line of decisions issued by the European Patent Office (EPO) concerning plant and animal patents up to the grant of EP 0695351. Part III analyzes the source of the scandal, namely Claim 48 of EP 0695351, in terms of its significance and of the motivation of the applicant and the EPO in respectively drafting and granting such a claim: "A method of preparing a transgenic animal, said animal comprising a selectable marker capable of differential expression in (a) desired stem cells and (b) cells other than desired stem cells . . . ." Finally, the conclusion examines the future of EP 0695351 and the most recent developments in Europe for the protection of biotechnological inventions.

Abstract

     This daylong Conference convened by Professor Fitzgerald and Dr. Cifuentes was held at Santa Clara University School of Law, Santa Clara, California, on March 23, 2001. The Conference aimed to bring together leading technologists and lawyers, from across the globe, in order to better define and articulate technological reasons and legal principles for reverse engineering in the area of software.
     While the legality of the reverse engineering of software, within defined limits, has been firmly established in Europe and the United States since the early 1990s, a number of recent developments invite further discussion of the issue. Specifically, three issues are worthy of note: first, the growth of digital or software locks and the enactment of the 1998 Digital Millennium Copyright Act (the "DMCA") which raises civil and criminal liability for circumvention, and directly addresses circumvention devices in certain instances; second, the growing need to provide quality assurance through reverse engineering in the areas of security and error correction; third, the massive increase in software patents and the uncertain legal situation of the reverse engineering of patented software.
     In addition to these issues, the Conference posited the inherently discursive nature of digital property, in particular software, and the way in which digital property should be facilitated by reverse engineering to augment digital diversity.

Abstract

     The right of publicity provides celebrities with a common law intellectual property right in the economic value of their personae. In California, this right has been extended by statute to vest in the heirs and assignees of deceased celebrities. California Civil Code section 9902 states that:

[a]ny person who uses a deceased personality's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling or soliciting purchases of, products, merchandise, goods, or services, without prior consent from the person or persons specified in subdivision (c), shall be liable for any damages sustained by the person or persons injured as a result thereof.

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