Faculty Activities

Internationally recognized IP expert Professor Gordon shares scholarship on copyright and fair use

Professor Wendy J. Gordon

A world leader in copyright law, Professor Wendy J. Gordon is one of the most cited scholars in the field of intellectual property today. Renowned for her application of philosophy and economics to copyright and related common-law areas, and for her work on fair use, she has published on four continents, received numerous honors and grants, and spoken to audiences worldwide. Her articles are often anthologized and translated. The U.S. Supreme Court has cited her work in three cases, and the influence of her articles is pervasive in legal scholarship. Her work is frequently a topic in law school coursework as well; for example, her corpus has been the subject of a full-term seminar at the University of Hokkaido (Japan).

Professor Gordon, a BU Law faculty member since 1993, was recently named the Phillip S. Beck Professor of Law for her scholarly achievements in the fields of copyright, trademark, and theory of torts and property. Her focus is on the foundations of these fields, where she asks: What are the justifications and proper limits for the law’s provisions? She also investigates areas such as data ownership, free speech, the intersection of patent law with human rights, the law of unjust enrichment, and the relations between copyright on the one hand, and, on the other, regimes of property and tort.

In the past few months, the Harvard Law Review Forum published her “Trespass-Copyright Parallels and the Harm-Benefit Distinction,” the Fordham Law Review published her “Harmless Use: Gleaning from Fields of Copyrighted Works,” and her “Moral Philosophy, Information Technology, and Copyright: The Grokster Case” appeared in Information Technology and Moral Philosophy (Cambridge University Press 2008). Professor Gordon’s new essay “Current Patent Laws Cannot Claim the Backing of Human Rights” appears in the forthcoming book Intellectual Property and Human Rights: A Paradox (Edward Elgar November 2009).

Professor Gordon is participating in upcoming symposia at the law schools of Fordham University (on IP functionality) and Cornell University (on “commons” as a mode of organizing IP production). She chaired the panel “Copyright and the Public Sphere” at the Philosophy and Intellectual Property Conference at the University of London this summer, and she delivered a paper at the “Roundtable on Intellectual Property and Religious Thought” at the University of St. Thomas School of Law in September. She has been invited to make a presentation on philosophic issues within copyright to the Moral Sciences Club, Faculty of Philosophy, University of Cambridge (U.K.), and to the American Philosophical Association 2010 meeting in Chicago.

Last year Professor Gordon served as the Bacon-Kilkenny Distinguished Visiting Professor of Law at Fordham University School of Law. She also has taught as a visiting professor at the law schools of the University of Chicago, Georgetown, the University of Illinois at Champaign/Urbana (where she served as the Raymond and Mildred Van Voorhis Jones Visiting Professor of Law), and the University of Michigan; she has been the Visiting Senior Research Fellow at St. John’s College, Oxford (U.K.). A former Fulbright scholar and the recipient of a Bellagio residency from the Rockefeller Foundation, she twice served as chair of the Association of American Law School’s IP Section. She has co-edited two books on the economics of copyright and more than 30 articles. Among other honors, she has received a Lon L. Fuller Prize in Jurisprudence, a New Jersey Fellowship in the Humanities, and recognition for her teaching.

For Professor Gordon, the dynamic field of IP provides rich soil for scholarship. “Working with copyright has been tremendously exciting, as terrain shifts continually,” said Professor Gordon. “Changes in media, business strategies and technologies pose novel conundrums virtually every day. But there is also great challenge in investigating the underlying and recurring questions that arise in this subtly different area of law.” Professor Gordon, who prefers the term “intangible products” over “intellectual property,” blends the insights of philosophy, economics and political theory, examining some of the foundational presumptions that explain the design and enforcement of intellectual property.

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Professor Meurer compares IP with traditional property, examines entrepreneurship

Professor Michael Meurer

Having earned a Ph.D. in economics in addition to a J.D. degree, Professor Michael Meurer brings an interdisciplinary approach to his intellectual property scholarship.

The author of a widely acclaimed book, Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk, (Princeton University Press, 2008, co-authored with economist and BU Law lecturer James Bessen), Professor Meurer is always expanding the discussion of intellectual property law by looking to experts in varying fields to view IP through new perspectives. In an April conference that he hosted, “What Does the Economics of Property Law Teach Patent, Copyright and Trademark Scholars?” at BU Law, Professor Meurer welcomed the chance to bring together leading scholars in the fields of intellectual property law, economics and property law, including BU Law professors Bessen, Stacey L. Dogan, Wendy J. Gordon and Kevin Outterson.

“Surprisingly, scholars who study the law and economics of traditional property do not have much contact with scholars who study the economics of intellectual property,” said Professor Meurer. “At the conference, we discussed how close the connections are between the two fields, and whether there are many fruitful lessons that can be drawn from research on traditional property and applied to intellectual property.”

The conference was open to students and faculty at the law school, as well as scholars from around the world. Professor Meurer said some professors traveled from as far as Israel, Canada and England to attend.

In other interdisciplinary research, Professor Meurer is the principal investigator for a law school grant from the Ewing Marion Kauffman Foundation’s “Law, Innovation and Growth” initiative. He is collaborating with law professors from BU and Cornell and economists from BU’s School of Management, the Philadelphia Federal Reserve Bank, and Research on Innovation.

“The Kauffman Foundation is making a big effort to get legal academics to pay attention to entrepreneurship and the role that it plays in our economy,” said Professor Meurer. Grant participants have begun to delve into research as varied as open innovation and biotechnology firms, trade-secret law and growth of the high-tech industry, and financial system reforms and its impact on venture capitalists. They also plan to hold conferences and workshops relating to entrepreneurship and innovation during the upcoming academic year.

“We’d like to identify places where American law facilitates entrepreneurship, and other places where it impedes it,” said Professor Meurer. “Then the hard question is whether it’s desirable to reform the law to encourage entrepreneurship. Stay tuned for future policy recommendations. ”

Professor Meurer will participate in several upcoming conferences, including:

  • “Dialogues in Knowledge and Technology Transfer: Optimizing KTT Pathways for Unmet Therapeutic Needs.” This workshop, to be hosted by BU School of Management prior to the Drug Discovery Partnership conference, will examine the challenges facing KTT pathways in therapeutic treatments. October 27, 2009
  • “The Institutional Origins of Innovation.” Economists, historians, lawyers and other scholars who specialize in 19th century business law and economic history will look at the roles of institutions and policies that facilitated innovation before and during the first and second Industrial Revolutions. March 19-20, 2010

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Professor Hylton’s new book and papers examine antitrust, IP rights, and economics

Professor Keith Hylton

Professor Keith Hylton, the Honorable Paul J. Liacos Professor of Law at the School, is an authority on antitrust who also examines IP issues. In the upcoming Searle Law and Political Economy Colloquium at Northwestern University Law School, Hylton will share his cutting-edge research on the economic logic behind intellectual property law, and present several chapters from his forthcoming book Laws of Creation: Property Rights in the World of Ideas, which he is co-writing with former BU Law Dean Ronald Cass. The October 22-23, 2009 colloquium will include IP scholars and judges, along with a Research Roundtable intended to enlighten lawyers, professors, students and economists.

“We recognize that the case for intellectual property, like all property laws, is contingent on technology and tastes, and many aspects of the law ultimately turn on empirical issues,” Hylton says in the book’s abstract. “The law appears to be designed to provide secure rights while at the same time limiting the costs of those rights. Specifically, intellectual property doctrine strikes a roughly optimal balance between the static costs of monopolization and the dynamic benefits from encouraging innovation. We examine this balance in several fields of intellectual property and in some of the current debates about the scope and application of the law.”

Along with his upcoming book, this year Professor Hylton has written two papers in the IP field. In “The Lawful Acquisition and Exercise of Monopoly Power and Its Implications for the Objectives of Antitrust,” (with David S. Evans, of University College London and University of Chicago Law School) published in Competition Policy International Vol. 4, Hylton explores the antitrust–IP intersection.

The paper discusses the role of dynamic competition in antitrust. “It argues that antitrust law in the U.S. can be explained best if one recognizes that it permits firms to gain monopoly power through numerous lawful means,” said Hylton. “In this sense, antitrust law is not inconsistent with intellectual property law, which awards monopoly rights on certain types of innovation. Antitrust law reflects a balance between the promotion of static (e.g. price-based) competition and dynamic competition. The same is true of intellectual property law.”

His working paper “The Economics of Injunctive and Reverse Settlements” (with Sungjoon Cho of Chicago Kent College of Law) examines the economics of reverse settlements. Reverse settlements are observed in some patent infringement cases, where the patent holder pays off the alleged infringer in a settlement of the infringement suit. This paper identifies the conditions under which reverse settlements will be harmful to consumer welfare. It also explores the divergence between private and social incentives to settle, and policies that would minimize socially undesirable injunctive settlements. The results are applied largely to competition-blocking litigation, such as patent infringement and anti-dumping.

This paper is available on the Social Science Research Network at SSRN.com.

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Professor explores connections among IP law, access and innovation in pharmaceutical market

Professor Kevin Outterson

Professor Kevin Outterson’s work focuses on global pharmaceutical markets, including the nexus between intellectual property law, access and innovation. His recent work looks at the unique intellectual property and other legal features of resistance to antimicrobial drugs, leading to workshops at Harvard Medical School and work published in Lancet Infectious Diseases, the Cardozo Law Review, and the University of Pittsburgh Law Review. He has published 18 scholarly articles and seven book chapters, including a chapter on Article 31 of the World Trade Organization’s TRIPS Agreement, on conditions for compulsory licenses, and a chapter on drug counterfeiting and the Anti-Counterfeiting Trade Agreement in Import Safety: Regulatory Governance in the Global Economy (Cary Coglianese, Adam Finkel, & David Zaring, eds., 2009, The University of Pennsylvania Press).

The following are several of Professor Outterson’s recent publications exploring intellectual property law:

  • Published in the January/February 2008 issue of Health Affairs (the leading peer-reviewed health policy journal in the US), the article “Market-Based Licenses for HPV Vaccines in Developing Countries” (with Aaron S. Kesselheim) proposes a licensing tool to promote global access to new high-cost vaccines, such as the HPV vaccine for cervical cancer. “Without innovative IP licensing tools, rollout of important vaccines will be very limited and delayed in low- and medium-income countries,” said Professor Outterson.
  • Lancet Infectious Diseases, an important peer-reviewed medical journal, published Professor Outterson’s article “Will Longer Antimicrobial Patents Improve Global Public Health?” (with Julie Balch Samora, M.P.H., and Karen Keller-Cuda, J.D.). In the article, they challenge the conventional wisdom that current IP incentives are inadequate for the development of new antimicrobial agents against drug-resistant diseases.
  • “Death from the Public Domain” is a short essay responding to Ben Roin’s (Harvard Law School) article in the Texas Law Review. Roin proposes an expansion of patent law to include obvious pharmaceutical inventions. The critique is narrowly focused on a re-examination of the data Roin used to illustrate his thesis, particularly the patent history of the pain medication Ultracet.
  • “The Ecology of Antibiotic Resistance,” an article coming in the December 2009 Cardozo Law Review, is a significant attempt to bring coherence to emerging theories of pharmaceutical innovation in the face of antibiotic resistance. The presence of resistance makes some categories of pharmaceutical innovation contentious, and otherwise upends conventional wisdom. The theoretical framework is supported with extensive data from major hospital-based antibiotics, including vancomycin.

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