- ISBN: 9789041128621ISBN: 0966-1646ISBN: 0043-650XISBN: 978-3161495762ISBN: 978-0-19-929054-3ISBN: 978-2930066707Available in Portuguese only.This contribution to an inter-disciplinary book on Trademarks and Brands responds to the work of Alan Durant, a linguist who (in his chapter of the book) provides legal scholars with both a rich understanding of how linguists view terms that are part of the basic argot of trademark law and a potentially vital explanation of the different social functions that word marks might serve. The Response explains why linguistics should matter to trademark law, but also why trademark law might on occasion ignore the precise reality of consumer understanding as might be provided by linguistics. I suggest that, while trademark law should not become beholden to linguistics, the lessons of Durant?s linguistic analysis are to some extent already accommodated in the practice of trademark law, and could be important guides in the further development of a number of legal principles. In particular, I explain how trademark law does in large part take into consideration Durant?s observation that legal analysis would comport more with the reality of how words function if it focused on marks as they are used. The Chapter also argues that Durant?s exploration of the concepts of ?distinctiveness? and ?descriptiveness?, as understood by lawyers and linguists, respectively, should reinforce important lessons for legal scholars about the complex policy prescriptions embodied in those concepts. Finally, I argue that particular insights developed by Durant from the field of linguistics may prove valuable in illuminating several points of contention in contemporary trademark law. In particular, Durant stresses that determining whether a defendant?s use has evoked the source-identifying aspect of plaintiff?s mark, as opposed to the descriptive properties of that term, can only be done by analyzing the ?discourse ?setting? in which interpretations are constructed.? Thus, although the type of use should be relevant to assessing infringement, any analysis of use type must be highly contextualized. This insight should inform the choice of doctrinal vehicles by which trademark law establishes limits on the scope of protection.The WIPO Copyright Treaty (WCT) recognized the need to maintain a balance between the rights of authors and the larger public interest in updating copyright law in light of advances in information and communications technologies. But the translation of this balance into the domestic laws of the United States and European Union has not been fully successful. In the DMCA, Congress achieved a reasonable balance of competing interests in its creation of safe harbors for internet service providers. However, contrary to its apparent intention, Congress failed to achieve a similar balance of interests when establishing new rules forbidding circumvention of technical protection measures (TPMs) used by copyright owners to control access to and use of their works. The EU Copyright Directive spoke of a commitment to ensuring that certain public interest uses can be made of technically protected works but contains limits that seemingly undermine this commitment. As a result, national implementations of the Copyright Directive have not adequately facilitated public interest uses of technically protected content.
We believe that practical judicial and administrative measures can and should be devised to implement the spirit of the WCT in both the U.S. and EU without reopening the contentious debates that engulfed the process leading up to enactment of the DMCA and the EU Copyright Directive. To this end, we propose adoption of a ?reverse notice and takedown? procedure to help achieve some of the balance in anti-circumvention rules that the WCT endorsed, but which implementing legislation has thus far failed to deliver. Under this regime, users would be able to give copyright owners notice of their desire to make public interest uses of technically protected copyrighted works, and rights holders would have the responsibility to take down the TPMs or otherwise enable these lawful uses.
A reverse notice and takedown regime would achieve for the anti-circumvention rules a comparable symmetry with the balance embedded in the ISP safe harbor rules. It would also effectuate the nascent, but not fully realized, legislative intent to permit public interest uses of technically protected digital content, while at the same time protecting copyright owners against circumvention of TPMs that would facilitate or lead to massive infringements. In the U.S., the most likely way to achieve this goal is through judicial interpretation of the anti-circumvention rules through case by case adjudication. In the EU, by contrast, member states could implement a reverse notice and takedown regime in the course of fulfilling their obligations under Article 6(4) of the Copyright Directive, which requires them to ensure that users of technically protected works can exercise certain public interest exceptions. Nations that have yet to implement the WCT may find our proposed reverse notice and takedown regime provides a far more balanced way to comply with the treaty than the approach being promoted by U.S. trade negotiators.National copyright policy, traditionally reflective of domestic cultural and economic priorities, is increasingly shaped by foreign and international influences. In this chapter, I sketch some of the changes in copyright lawmaking that have given rise to this phenomenon. Especially when viewed in historical context, foreign and international influence on the development of copyright law is now quite pervasive ? albeit in ways, and effected through a number of institutions, that might appear surprising.Contribution to handbook (Brazilian law chapter).