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Irene Calboli

Recital 44 asserts that the question of exhaustion does not arise in the context of online delivery of (digital) works, which is generally understood to mean that the owner of copyright maintains full control over the digital dissemination of digital works. Above and beyond impacting upon the question of whether exhaustion may occur online, a broader issue is at stake here. Historically, the exhaustion rule developed out of the notion of an implied licence. The latter was an attempt to explain the loss of control rights of IP owners following the first act of exploitation.
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Irene Calboli

This chapter address the issue of secondary liability in trademark law, specifically the ongoing uncertainty that still characterizes the application of the judicial doctrine of contributory trademark infringement. Scholars and courts in the United States have long discussed the standard to apply for finding contributory infringement. The debate intensified with the arrival of the Internet. In particular, several legal disputes claiming contributory trademark liability for intermediaries were filed in the years that followed the rise of the Internet. While this increase in disputes has led to a higher number of judicial decisions addressing contributory infringement, the precise boundaries for the application of the doctrine remain unclear. This chapter advocates for more clarity in this area. The chapter starts with a survey of the judicial development of the doctrine of contributory trademark infringement, first in the brick-and-mortar world and then as applied to the Internet. Based on this survey, the chapter notes that we still do not have clarity as to what represents sufficient “knowledge” and “control” to make an intermediary liable under the Inwood test, even though courts seem to have settled on a narrow interpretation of these concepts due to the concern that a broader interpretation would foreclose legitimate intermediaries’ activities. The chapter concludes that courts ultimately seem to follow a “we know it when we see it” approach in this area, based on an overall “benevolence standard” towards businesses that are primarily legitimate. Yet, this approach leaves too much uncertainty, and intermediaries and the service economy need clearer guidelines from the courts and, possibly, from the legislature.

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Irene Calboli

This chapter looks to the present and future relationship between IP and the creative industries in the context of diversity. It discusses films (including cartoons) their approaches to homosexuality, gender and discrimination and some examples of this enabling a more inclusive approach to important issues for society. In contrast, the chapter notes that the creative industries themselves often do not pursue diversity, for example the Academy Awards of 2016 and a focus on generating toys of the male, rather than female, characters in Star Wars. Against this backdrop, the chapter explores the contribution which IP can make to the evolving relationship between the creative industries and diversity. Among other examples it explores the 2017 decision of the US Supreme Court regarding the ‘Slant’ trade mark, changes within copyright law regarding some disabilities, changes in power holders as a result of new technologies and contrasting to approaches to IP – some based in utilitarianism, some in respecting cultural diversity. The chapter calls for IP to bring about new approaches to the protection of diversity, and argues that wider methodologies can assist in this.