Faculty Bibliography
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This paper contends that the proper role of law in managing uses of traditional knowledge is highly contextual. In some settings, distributive justice, cultural diversity and group identity formation would be promoted by according Indigenous groups more power to control or to benefit from uses of knowledge developed and sustained by their members, while in other settings, respect for individual autonomy and the promotion of semiotic democracy counsel against providing the groups that power. The paper then outlines two alternative legal frameworks, either of which could accommodate this complex combination of competing values. The first would incorporate, in a multilateral treaty, a set of provisions that, by increasing the risk that the unauthorized use of traditional knowledge would result in forfeiture of intellectual property rights, would put pressure on private firms to accede to reasonable requests made by the governments of developing countries and by representatives of Indigenous groups. The second would augment and harness public discourse concerning the morality of particular uses of traditional knowledge by creating a disclosure obligation, disconnected from intellectual property law, analogous to the labelling requirements commonly imposed on the producers of food, clothing and drugs.
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Drawing on three case studies, this Essay contends that the proper role of law in managing uses of traditional knowledge is highly contextual. In some settings, distributive justice, cultural diversity, and group identity formation would be promoted by according indigenous groups more power to control or to benefit from uses of knowledge developed and sustained by their members, while in other settings, respect for individual autonomy and the promotion of semiotic democracy counsel against providing the groups that power. The Essay then outlines two alternative legal frameworks, either of which could accommodate this complex combination of competing values. The first would incorporate in a multilateral treaty a set of provisions that, by increasing the risk that unauthorized use of traditional knowledge would result in forfeiture of intellectual property rights, would put pressure on private firms to accede to reasonable requests made by the governments of developing countries and by representatives of indigenous groups. The second would augment and harness public discourse concerning the morality of particular uses of traditional knowledge by creating a disclosure obligation, disconnected from intellectual property law, analogous to the labelling requirements commonly imposed on the producers of food, clothing, and drugs.
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David L. Lange Lecture in Intellectual Property, Duke Law School
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William W. Fisher, Lessons from CopyrightX, in Copyright Law in an Age of Limitations and Exceptions (Ruth Okediji ed., 2017).
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In all countries, a work is eligible for copyright protection only if it is "original." However, the manner in which that requirement is interpreted varies by country. This article first surveys the ways in which "originality' is currently construed, then proposes a reorientation of the doctrine that would advance more effectively than any of the extant interpretations the proper objectives of the copyright system.
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Several large pharmaceutical companies have selectively downsized their neuroscience research divisions, reflecting a growing view that developing drugs to treat brain diseases is more difficult and often more time-consuming and expensive than developing drugs for other therapeutic areas, and thus represents a weak area for investment. These withdrawals reduce global neuroscience translational capabilities and pose a serious challenge to society’s interests in ameliorating the impact of nervous system diseases. While the path forward ultimately lies in improving understandings of disease mechanisms, many promising therapeutic approaches have already been identified, and rebalancing the underlying risk/reward calculus could help keep companies engaged in making CNS drugs. One way to do this that would not require upfront funding is to change the policies that regulate market returns for the most-needed breakthrough drugs. The broader neuroscience community including clinicians and patients should convene to develop and advocate for such policy changes.
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In many organizations, the R&D, strategy, and legal functions are poorly integrated. As a consequence, firms miss opportunities to create and exploit the value of intellectual property. Functional silos are one reason for the lack of integration. More important, however, is the lack of a common framework and even language that would allow engineers, lawyers, and business executives to manage IP assets better. This article provides such a framework. There is no one best way to manage IP and many managers overestimate the attractiveness of using IP to exert market power. Rather, the value of the various means to protect and benefit from IP depends on firm strategy, the competitive landscape, and the rapidly changing contours of intellectual property law.
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The overall trajectory of American legal theory during the twentieth century was as follows. At the outset, a formalist faith gripped the judiciary and the law schools. Resistance to that vision among judges, lawyers, and law teachers gradually increased, ultimately finding full expression in the legal realist movement of the 1920s and 1930s. The realist wave ebbed in the 1940s, but left behind a host of new questions concerning the nature and scope of judicial discretion, the role of “policy” in lawmaking and legal interpretation, the appropriate relationship between public and private power, which branches of government should be entrusted with which legal issues, and, most broadly, the meaning and feasibility of “the rule of law.” After World War II, a new orthodoxy emerged, offering answers to those questions that seemed convincing to most legal scholars and lawmakers. Beginning in the 1960s, that new faith – dubbed by its successors, “process theory” – in turn came under attack, not from a single direction but from many angles simultaneously. The attackers, marching under the banners of “law and economics,” “law and society,” “Kantian liberalism,” “republicanism,” “critical legal studies,” and “feminist legal theory,” offered radically different visions of the nature and purposes of law. Each group attracted many adherents, but none swept the field. The net result is that, in the early twenty-first century, legal discourse in the United States consists of a cacophonous combination of issues and arguments originally developed by rival movements, some now defunct and others still with us.
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Fisher argues the traditional knowledge of environmentalism and the public domain ideas by presenting two combined related themes involving the British colonist of Native Americans. The idea of devaluing the Indian's nonacquisitive, natural, respectful way of living lightly upon the land while conserving it, and fostering imperialism and unjust conquest. Among other things, he formulates three parallel provisions to the TRIPS Agreement to increase the leverage of the countries in determining the terms on which flora, fauna, medicinal knowledge, folklore, and traditional art forms are exploited by others.
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William W. Fisher & Jacqueline Harlow, Film and Media Studies and the Law of the DVD, Cinema J., Spring 2006, at 118.
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This anthology presents, for the first time, full texts of the twenty most important works of American legal thought since 1890. Drawing on a course the editors teach at Harvard Law School, the book traces the rise and evolution of a distinctly American form of legal reasoning. These are the articles that have made these authors--from Oliver Wendell Holmes, Jr., to Ronald Coase, from Ronald Dworkin to Catherine MacKinnon--among the most recognized names in American legal history.
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William W. Fisher, The Growth of Intellectual Property: A History of the Ownership of Ideas in the United States, in 1 Intellectual Property Rights: Critical Concepts in Law 72 (David Vaver ed., 2006).
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Testimony of William W. Fisher, In the Matter of Digital Performance Rights in Sound Recordings and Ephemeral Recordings, Docket No. 2000-9 CARP DTRA 1 & 2, Copyright Arb. Royalty Panel (Feb. 20, 2002).
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Two rounds of written and oral testimony before the Copyright Arbitration Royalty Panel, In the Matter of Digital Performance Rights in Sound Recordings and Ephemeral Recordings.
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Lawrence Lessig, Jonathan L. Zittrain, Charles R. Nesson, William F. Fisher & Yochai Benkler, Internet Law (Found. Press 2002).
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The countries of Central America, afflicted for many years by civil strife and economic stagnation, are entering a new era of peace, democracy, and economic development. Now, more than ever, it is necessary for reforms in the legal system to successfully support these changes. This volume examines two fields of law in which reforms are especially crucial: the improvement of the judicial systems and other mechanisms for resolving noncriminal disputes, and modernization of the laws governing both tangible and "intellectual" property. Among the specific topics addressed in the volume are the debate over "oralidad;" the problem of interlocutory appeals; nonjudicial procedures for resolving disputes (negotiation, mediation, conciliation, and arbitration); land and trademark registration systems; land reform in Nicaragua; the management of genetic resources; online legal databases; and legal education.
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The Bridge is divided into two major parts: a six-unit series on legal reasoning, and a series of modules on American Legal Theory, divided into six "tracks" representing important schools of thought. The series on legal reasoning should be approached in sequence. The materials on legal theory are more modular, and can be used in numerous ways.
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In this article, Professor William Fisher surveys how recent work in American legal history has been influenced by four methodologies developed by intellectual historians. He then identifies nine possible purposes of legal history and evaluates how the four methodologies might further each.
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This anthology offers a set of readings in legal realism, the most influential movement in American legal history, and one that remains the subject of lively debate. The readings were written between 1900 and 1940 and are not generally available.
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William W. Fisher, Ideology, Religion, and the Constitutional Protection of Private Property, 1760-1860, 39 Emory L. J. 65 (1990).
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William W. Fisher, The Jurisprudence of Justice Marshall, 6 Harv. Blackletter J. 131 (1989).
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The fair use doctrine, codified at 17 U. S. C. § 107, permits a court to excuse a putatively infringing use of copyrighted material when the circumstances surrounding the use make it "fair." In this Article, Professor Fisher criticizes the doctrine - and in particular the changes wrought by two recent Supreme Court decisions - and considers how it might be improved. The most serious of the many problems with current fair use jurisprudence, he maintains, is that it rests on considerations derived from four disparate philosophic traditions; this incoherent foundation makes the application of the doctrine unpredictable and aggravates the cacophony of contemporary legal argumentation. To alleviate these problems, Professor Fisher considers two alternative strategies for reconstructing the field. First, he examines fair use from an economic standpoint, arguing that, by comparing the various entitlements that might be accorded copyright owners in terms of the incentives they provide for creativity and the costs they impose on consumers, courts could employ the doctrine to increase efficiency in the use of scarce resources. Second, building on a discussion of the limitations of the economic approach, Professor Fisher deploys a "utopian" analysis of fair use, suggesting how the doctrine might be recast to incorporate particular conceptions of the "good life" and the "good society." So formulated, the fair use doctrine would contribute to the realization of a more just social order and a more integrated legal discourse.