Trademark Licensing in Keyword Advertising

This article examines the use of trademarks as keywords in sponsored links campaigns - in particular the impact of such usage on consumer confusion. It is thus important to highlight that there are a number of reasons why a consumer uses search engines. For example, it may be that a consumer searches for a type of product or service that appeals to them; the consumer may engage in comparison-shopping; or the consumer may already know the specific brand that he or she intends to purchase. Secondly, this article explores the possibility of infringement on other functions of trademarks in the case of the double-identity rule. Thirdly, the article discusses the negative aspects of broadening the concept of taking advantage and isolates this concept from the possibilities of confusion, detriment to the distinctive character, or the reputation of the trademark. Lastly, the article proposes possible remedies to the current situation – in particular the introduction of licensing models for the use of trademarks in keyword advertising and the application of the law on comparative advertising regarding the way the licensee uses those trademarks.

Manner of Obtainment as a relative in a family of resultative constructions

The present paper examines the syntactic and semantic properties of a group of constructions which carry an idiomatic interpretation of obtainment. In Polish and German, the constructions under consideration consist of a verb with a directional particle followed by an object NP, as exemplified in (1a)-(1b). (1a) Adam wynurkował starego buta. (Polish) Adam wy- snorkeled old shoe. ‘Adam found an old shoe while snorkeling.’ (1b) Michael erboxte sich den Titel. (German) Michael er- boxed REFL the title. ‘Michael boxed his way to the (championship) title.’ Sentences containing these constructions will be assumed to have the same basic interpretation “Subject obtains/produces Object by V-ing”. A constructional analysis of the constructions will be proposed, as they pose licensing problems and their interpretation cannot be accounted for in terms of the individual conceptual structures of the lexical items composing the sentence. Unlike most accounts of verb particle constructions based on implicit or explicit assumptions of straightforward semantic composition, the present study proposes an analysis under which the semantic structure of verb particle combinations is not a compositional function of the verb and the particle/prefix alone. It is argued that the construction comes with its own subcategorization frame (separate from that carried by the verb) which is motivated by the meaning of the construction and its corresponding constructional subevent. Additionally, a crosslinguistic correlation will be shown to hold between a language’s ability to express event conflation (Talmy 1985, 2000) and the occurrence of some form of the construction in that language. This will be taken as an indication of the resultative nature of those types of directional phrases which involve the semantic interpretation of boundary crossing.

Governance of Massive Multiauthor Collaboration – Linux, Wikipedia, and Other Networks: Governed by Bilateral Contracts, Partnerships, or Something in Between?

Open collaborative projects are moving to the foreground of knowledge production. Some online user communities develop into longterm projects that generate a highly valuable and at the same time freely accessible output. Traditional copyright law that is organized around the idea of a single creative entity is not well equipped to accommodate the needs of these forms of collaboration. In order to enable a peculiar network-type of interaction participants instead draw on public licensing models that determine the freedoms to use individual contributions. With the help of these access rules the operational logic of the project can be implemented successfully. However, as the case of the Wikipedia GFDL-CC license transition demonstrates, the adaptation of access rules in networks to new circumstances raises collective action problems and suffers from pitfalls caused by the fact that public licensing is grounded in individual copyright. Legal governance of open collaboration projects is a largely unexplored field. The article argues that the license steward of a public license assumes the position of a fiduciary of the knowledge commons generated under the license regime. Ultimately, the governance of decentralized networks translates into a composite of organizational and contractual elements. It is concluded that the production of global knowledge commons relies on rules of transnational private law.

Creative Commons Olympics. How Big Media is Learning to License From Amateur Authors

NBC Universal’s decision to use Creative Commons-licensed photographs in an Olympic broadcast is an example of how media conglomerates are experimenting with collaboration with amateurs, but it also reveals potential problems of letting non-lawyers negotiate copyright licensing agreements. In the process, NBC’s producers nearly opened the door for a multimillion-dollar infringement law suit. To avoid such pitfalls, media companies need to adopt policies and best practices for using amateur licensed works. These guidelines should instruct how a production can attribute collaborating authors and how the Open Content licensing terms affect the licensing of the productions. The guidelines should also instruct how producers can seek alternative licensing arrangements with amateurs and contribute back to the Open Content community.

How to Build an Orphanage, and Why

Currently, lawmakers on both sides of the Atlantic are struggling with the problem of orphan works. In the impact assessment of its proposal for a directive of the European Parliament and of the Council on certain permitted uses of orphan works, the Eurpean Commission mentions six possible ways of dealing with the problem. Three of the six (a statutory exception to copyright; extended collective licensing; an orphan-specific license granted by collecting societies) have each had their heyday during the past few years. This article examines how and why these changes in popularity occurred. In addition, it explains why a limitation on remedies would be the most adequate solution for the problem in Europe.

Transnational Law for Transnational Communities The Emergence of a Lex Mercatoria (or Lex Informatica) for International Creative Communities

Open Source Communities and content-oriented projects (Creative Commons etc.) have reached a new level of economic and cultural significance in some areas of the Internet ecosystem. These communities have developed their own set of legal rules covering licensing issues, intellectual property management, project governance rules etc. Typical Open Source licenses and project rules are written without any reference to national law. This paper considers the question whether these license contracts and other legal rules are to be qualified as a lex mercatoria (or lex informatica) of these communities.

A manifesto for an e-lending limitation in copyright

In the European Union, lending is an exclusive right for copyright and related rights, but Member States can transform public lending to a right of remuneration and even exempt some establishments from any payment. The making available of works online is not covered by the public lending right regime of the Rental and Lending Directive but is considered as an act of making available governed by the InfoSoc Directive. As a consequence, libraries are currently not allowed to digitally transmit works to their patrons as lending, but have entered into licenses with publishers to develop an offer of lending of e-books, also called e-lending, with the intermediation of dedicated platforms operated by commercial actors. Compared to physical lending, e-lending is not based on ownership of the book by libraries but on its provision by this intermediary. This paper discusses how the objective of enabling libraries to engage in e-lending should be achieved, and what is the proper dividing line between a market-based solution, as developing today, and a limitation to exclusive rights. The impact of an extension of the public lending right to e-lending should be assessed, but not based on a criterion of direct substitution of a book on loan at the library to a book bought at a retailer. By definition, libraries are substitutes to normal trade. Instead, the overall effect of lending to the commercialisation of books and other works should be verified. Particular conditions for a limitation in favour of lending are also addressed, and notably the modalities of lending (a limited duration, one simultaneous user per title, …), not to make e-lending through libraries easier and preferable to the normal acquisition of an e-book. This paper argues in favour of some and controlled extension of the public lending right to cover the lending of e-books and other digital content. For the role of libraries is essential in providing access to works and culture to readers who would or could not rely only on normal acquisition of books or other items on the market, to works that are not provided by the market, and to material for research. Libraries are a third sector providing access to works, aside the market and non-market exchanges between individuals. This role should not lose its relevance in the digital context, or it would culturally impoverish future generations of readers.

Cultural Heritage Online? Settle It in the Country of Origin of the Work

This article examines the conditions under which a system of extended collective licensing (ECL) for the use of works contained in the collections of cultural heritage institutions (CHIs) participating in Europeana could function within a cross-border basis. ECL is understood as a form of collective rights management whereby the application of freely negotiated copyright licensing agreements between a user and a collective management organisation (“CMO”), is extended by law to non-members of the organisation. ECL regimes have already been put in place in a few Member States and so far, all have the ability to apply only on a national basis. This article proposes a mechanism that would allow works licensed under an ECL system in one territory of the European Union to be made available in all the territories of the Union. The proposal rests on the statutory recognition of the “country of origin” principle, as necessary and sufficient territory for the negotiation and application of an ECL solution for the rights clearance of works contained in the collection of a cultural heritage institution, including orphan works.

Permissibility of Non-Voluntary Collective Management of Copyright under EU Law – The Case of the French Law on Out-of-Commerce Books

The possibility of the EU member states to adapt copyright legislation to new circumstances and to address unforeseen issues is limited by the list of exceptions and restrictions of the InfoSoc Directive. In spite of this constraint, the EU copyright framework provides for a possibility of introduction of non-voluntary forms of collective rights management that can help to tackle some of the contemporary problems with remuneration and access. This article is an attempt to deepen the understanding of non-voluntary collective management and its possible use. First, it provides a detailed description of the French mechanism adopted for facilitating mass digitization and making out-of-commerce books available, which was implemented through a new form of collective management of copyright. Then, it examines the mechanism’s compatibility with the InfoSoc Directive through comparison with the extended collective licensing.