IIPSJ Attendance at the 64th World Intellectual Property Organization General Assemblies
(WIPO GA) (Geneva, 6-14 July 2023)
By Dr. Metka Potočnik (she/her/hers), Senior Lecturer in Law, Wolverhampton Law School
IIPSJ attended the 64th World Intellectual Property Organization (WIPO) General Assemblies (GA), in their capacity as the WIPO Accredited Observer. IIPSJ attended the official hearings at the WIPO Headquarters in Geneva, with the Associate Director for International Programmes, Dr Metka Potočnik, attending the length of the proceedings in person. These assemblies brought together a record number of delegates, with over 1,200 delegates in attendance, which exceeded the pre-Covid numbers of attendance in the General Assemblies. A full list of participants is available here, and all the sessions are available for viewing here.
IIPSJ previously observed several WIPO meetings online and took this GA as an opportunity to create strategic partnerships with Member States and other stakeholders, interested in creating access, inclusion and empowerment for under-represented creators and innovators in the global eco-system. IIPSJ representative attended the 10th WIPO-NGO Stakeholder Dialogue, which was organised in parallel with the 64th WIPO GA and took place on Monday, 10 July 2023, at WIPO New Building. WIPO Director General Tang and other WIPO experts met with over 40 Accredited Observers and NGOs, in discussing important issues, which require a multi-stakeholder response. The event has been placed in the spotlight for its importance, and more can be read here.
IIPSJ is aiming to contribute to the future discussions in WIPO, with the aim of building a more inclusive WIPO eco-system. The IIPSJ team are working towards a meaningful participation in the 44th Session of the Standing Committee on Copyright and Related Rights (SCCRR) (see here) and the 31st Session of the Committee on Development and Intellectual Property (CDIP) (see here). If you are interested in contributing to IIPSJ work in this space, do contact the IIPSJ directly.
2023 IP & Social Justice CLE Recap
“IIPSJ’s annual conferences played an important role in developing a social justice perspective in intellectual property law and policy. The Institute’s mission is a vital one”- Honorable Raymond T. Chen
These were some of the key reflections to come out of the 20th Annual Intellectual Property and Social Justice CLE Conference, held on March 3, 2023. The event marked more than two decades of increasing the education surrounding the nexus of intellectual property and social justice as well as broadening the knowledge of intellectual property practitioners across the globe.
As part of the 20th anniversary, we celebrated the program and Institute founders with awards. IP Social Justice Lifetime Achievement Awards were given to Thomas L. Irving and Steven D. Jamar.
And we honored Professor Lateef Mtima with an award as well that read:
Presented to Lateef Mtima 
In recognition of your unwavering commitment to increasing diversity in intellectual property law and guiding the next generation of attorneys especially those from historically black colleges and universities
In appreciation of your contributions to the field of intellectual property law through your superior and thought-provoking authorship on the topic of intellectual property and social justice
In acknowledgement of your ongoing service to the intellectual property legal community through your teachings as a renowned lecturer and leadership as founder of the Institute for Intellectual Property and Social Justice.
For the CLE program, key attendee sessions included our annual IP Year in Review, social justice luncheon sessions: Unleashing American Innovation Act and Highlights from the Innovator Diversity Pilots Conference, as well as the annual Donald R. Dunner Judicial Panel, 
which included insights and reflections from the Honorable Leonard P. Stark, Judge with the United States Court of Appeals for the Federal Circuit, the Honorable Scott R. Boalick, Chief Administrative Patent Judge with the Patent Trial and Appeal Board in the U.S. Patent and Trademark Office, the Honorable Bryan F. Moore, Administrative Law Judge with the United States International Trade Commission, and the Honorable Susan G. Braden, Former Chief Judge (ret.) with the United States Court of Federal Claims.
The IP and Social Justice CLE Conference benefits from participation from all demographics within the IP legal community: attorneys in private practice, in-house counsel corporate departments, government agencies, and public interest NGOs, as well as members of the judiciary and government officials. In addition to the keynote sessions, this year’s breakout sessions included networking and discussions with counsel from Meta, Under Armour, J.P. Morgan, 3M Company, Freddie Mac, Visa and Pall Corporation, affording many the opportunity to gauge the current climate on the field in terms of fair use, trade secrets, and adding value as in-house counsel.
Year after year, the mantra of the conference remains the same – to expand the opportunities for minority attorneys to pursue careers and distinguish themselves in the field of intellectual property law. The Conference’s core objectives include:
● Educating minority and other IP attorneys on current developments in the law in an environment that highlights the social justice obligations of IP law.
● Providing minority and other attorneys in government, civil rights, public interest, and/or non-profit practice a free/nominal fee opportunity to develop IP practice skills.
● Providing an opportunity for experienced minority IP lawyers to demonstrate their expertise in the field to audiences they might not otherwise reach, while offering professional networking opportunities for minority and other IP attorneys.
Studies continue to confirm that African Americans and other minorities are severely underrepresented in intellectual property legal practice, notwithstanding the important contributions these communities make to intellectual property production and use in our society. Contributions from participants and speakers alike have enhanced the significance of the conference as the only intellectual property CLE program of its kind. Erika H. Arner, Managing Partner of Finnegan, Henderson, Farabow, Garrett & Dunner, LLP said, “Now more than ever we need organizations like IIPSJ, taking concrete and impactful actions to advance social justice and IP.”
The 2023 CLE sessions were:
- IP Law Year in Review – Trademark, Patent, and Copyright
- Donald R. Dunner Judicial Panel
- Highlights from the Innovator Diversity Pilots Conference
- Unleashing American Innovation Act
- Leading with IP and Adding Value to Corporations
- How Fair Is Fair Use? A Discussion About Andy Warhol Foundation v. Goldsmith
- In House Counsel Discussion on Trade Secret Law
- Updates on College Athletes NIL & Celebrities Right of Publicity
- Ethics
View the full list of videos here.
Thank you to our sponsors!
2023 HBCU IP & Tech Law Summit Recap
On March 2, 2023, IIPSJ, co-host Perkins Coie, and several sponsors, hosted the 5th Annual Microsoft Technology Summit to provide a comprehensive “diversity pipeline” experience for law students. During the Technology Summit, law students learned about new opportunities in intellectual property(IP) and technology law and policy practice.
Acting Principal Deputy National Cyber Director of the Office of the National Cyber Director Kemba Eneas Walden delivered the keynote speech to attendees alongside Founder of the HBCU IP & Tech Law Summit Charlie Bingham for a fireside chat. Acting Director Walden recounted her journey to her current role as a Hampton University graduate and addressed issues of cybersecurity that her office plans to handle as a result of President Joe Biden’s newest initiative.
The Summit consists of two key components: a full day of student-focused IP and technology law updates with networking and recognition of student academic and extracurricular achievement in these fields, including the presentation of “micro” scholarship awards paid directly to students. This year, the following were recipients of awards:
- D&I in Tech Ally Award
- Cameron Benton, NCCU
- Tech Law Policy Achievement Award
- Kayla Mitchell, 3L NCCU
- Samuel Cadet, HUSL
- Outstanding Achievement in IP Social Justice Award
- Daria Fogan, HUSL
- DeNashia Robinson, HUSL
- Brianna George, NCCU
- The IP & Tech Law Summit IP Social Engineer Award
- Michee Jacobs, HUSL
- Askhari Little, HUSL
- Tyrrell Ufot, NCCU
- The IP & Tech Law Summit IP Achievement Award
- Leandre’a Scott, NCCU
While the Summit was initially established for Howard Law students, it has since been expanded to include students at four historically black colleges and university law schools. In 2022 a pilot initiative was added to expand the scope of the program to assist students in finding internship opportunities in IP practice, and to provide internship stipends where the internships secured are uncompensated.
Some of the subjects covered during the event included data privacy, cryptocurrency, and blockchain and were presented by experts in the intellectual property field including executives from Uber, Perkins Cole, and Reed Smith hosting sessions such as:
- The Impact of Innovative Technologies on Society and the Practice of Law
- The Impact of Cryptocurrency and Blockchain on Society and the Practice of Law
- Paying it Forward: A Day in the Life of a Tech Lawyer
Find the full list of videos here.
Thank you to our sponsors!
Blog Post On Likeness Legislation
Recent Name/Image/Likeness Legislation Will Change the NCAA (or Not)
by Ronald S. Katz
INTRODUCTION
In a list of organizations creating inequities, the National Collegiate Athletic Association would certainly be included. For example, like professional sports, the NCAA is a multi-billion-dollar enterprise, but, unlike professional sports, it pays only a minuscule percentage of its revenues to its athletes, mainly in the form of athletic scholarships. In the field of intellectual property, those players have not been allowed to receive payments for their names, images and likenesses, even though every other student on campus has that right.
To remedy this latter injustice, California in September 2019 passed the Fair Pay to Play Act, allowing athletes rights regarding their names, images and likenesses similar to those enjoyed by all other students. Numerous other states are considering NIL legislation similar to California’s.
Because college sports receive much public attention, the California law, which does not come into effect until 2023, has generated numerous opinions about its potential effect. The extremes of those opinions range from those who say that the law will end intercollegiate sport as we know it to those who say that the law will have no effect. The NCAA has now also weighed in, stating, opaquely, that it will at some unknown point “permit” college athletes “the opportunity to benefit” from their name/image/likeness “in a manner consistent with the collegiate model.”
In fact, at this juncture, no one can really say what the effect, if any, of the law will be. That point was driven home by an order rendered on January 6, 2020, by the federal appellate court with jurisdiction over California, the Ninth Circuit Court of Appeals. Pursuant to that order, in the pending appeal (No. 19-15566) of In re: National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation, a case concerning the payment of college athletes, “The parties are directed to file…briefs…on the impact, if any, of California’s Fair Pay to Play Act…on this case.”
If the judges of the Ninth Circuit do not yet know the effect of the NIL law, it is fair to say that no one else does either. In my opinion, the best that can be done at this point, as below, is to put the law into context by triangulating among the extreme opinions noted above and the NCAA’s position on the Fair Pay to Play Act.
EXTREME OPINION #1: NIL LEGISLATION WILL END INTERCOLLEGIATE SPORT AS WE KNOW IT
There is logic supporting this view. For example, there is no difference in economic effect if an athlete receives from an alumni booster of a university $10,000 under the table, which violates NCAA rules; $10,000 in salary, which violates NCAA rules; or $10,000 for name, image or likeness, which would be legal under the Fair Pay to Play Act and, possibly, under new NCAA regulations. Because money is fungible, it really does not matter, in an economic sense, for what reason it is purportedly paid. Therefore, payment for names, images and/or likenesses can completely undermine the NCAA principle that athletes should not be paid. The amounts paid, in theory, could be virtually unlimited.
EXTREME OPINION #2: NIL LEGISLATION WILL HAVE NO EFFECT
This extreme view has support in the law. Under the Commerce Clause of the U.S. Constitution, states cannot make laws that regulate interstate commerce, and intercollegiate sports clearly constitute interstate commerce, viz., the NATIONAL Collegiate Athletic Association. Indeed, a case decided by the Ninth Circuit Court of Appeals in 1993 (NCAA v. Miller, 10 F.3d 633) applied this principle to intercollegiate sports.
In that case, Nevada made a law that would have caused NCAA disciplinary proceedings to have rules in Nevada different from those that the NCAA applied nationally. Like the Fair Pay to Play Act, the Nevada law had been emulated in other states.
The court did not hesitate to invalidate the Nevada statute on the ground that it regulated interstate commerce in violation of the U.S. Constitution: “The statute directly regulates interstate commerce and runs afoul of the Commerce Clause both because it regulates a product in interstate commerce beyond Nevada’s state boundaries, and because it puts the NCAA…in jeopardy of being subjected to inconsistent legislation arising from the injection of Nevada’s regulatory scheme into the jurisdiction of other states.” It is difficult, if not impossible, to distinguish the judicial reasoning applied to this Nevada legislation from the judicial reasoning that would be applied to California’s Fair Pay to Play Act.
THE NCAA’S OPAQUE PRONOUNCEMENT
As noted above, in October, 2019, after the California law passed, the NCAA issued a vague statement to the effect that It will study how college athletes may be paid for their names, images and/or likenesses “in a manner consistent with the collegiate model” at some unstated point in time. One problem with the NCAA’s statement is that the collegiate model is nowhere clearly defined.
Underscoring that fundamental problem is that the District Court decision being considered in the Ninth Circuit order mentioned above (In re Nat’l Collegiate Athletic Ass’n Athletic Grant-in Aid Cap Antitrust Litig., No. 14-MD-02541 CW, 2019 WL 1747780, (N.D. Cal. Mar. 8, 2019)) concluded that the NCAA rules “that permit, limit, or forbid student-athlete compensation and benefits do not follow any coherent definition of amateurism,” which is the core principle of the NCAA. This finding was based, among other things, on inconsistent definitions of amateurism given by different NCAA witnesses and on the fact that at trial, according to the court’s opinion, there was evidence of seventeen different ways-such as payment for post season bowl or championship play–that the NCAA permits athletes to be compensated.
Thus, whatever the NCAA’s definition of an amateur is, it does not comport with the dictionary definition: “a person who engages in a study, sport or other activity for pleasure rather than for financial benefit or professional reasons.” Given the above, it is difficult to divine how the NCAA will create a system of payment for athlete names, images and likenesses “consistent with the collegiate model.” It should be noted that payment for the names, images and/or likenesses of athletes rarely have a connection to education.
CONCLUSION
Intellectual property injustice is a symptom of the NCAA’s underlying problem, and the Fair Pay to Play Act is a reaction to that symptom. The fundamental problem of the NCAA is that its top levels are indistinguishable from professional sports, and the theory of amateurism-however that is defined–does not work in that context. Whether the Fair Pay to Play Act survives or not, the pressure will continue to bring the regulation of college sport in line with its reality.
Ronald S. Katz is a Senior Counsel at GCA Law Partners LLP. A co-author of Sport, Ethics and Leadership, he will be speaking on the subject covered above at the 2020 IP and Social Justice CLE this coming February 28.
Fair Pay to Play Act
The California Fair Pay to Play Act- Finally IP Social Justice for Student Athletes
Earlier this month Governor Gavin Newsom signed into law the Fair Pay to Play Act, the nation’s first law to override the NCCA’s prohibition which prevents student athletes from commercially exploiting their IP and related legal rights. See California Law Takes Paying College Athletes Out of the NCAA's hands. The NCAA maintains its rule notwithstanding the fact that the NCAA requires student athletes to permit the NCAA to exploit those very same rights to obtain millions in revenues every year.
For years, some legal scholars (see e.g. Lateef Mtima, What's Mine Is Mine but What's Yours Is Ours: IP Imperialism, the Right of Publicity, and Intellectual Property Social Justice in the Digital Information Age) and many social activists have urged that the NCAA rules allowed the grossly unfair exploitation of student athletes, many of whom hail from marginalized, working class, and rural communities, and for whom the college athletic scholarship system provides the only opportunity to obtain a college education. Although at one point it seemed that the courts were willing to curtail NCAA rules and allow students to protect their IP rights from unfair exploitation, this progressive wave came to a halt when the United States Court of Appeals for the Ninth Circuit overturned a California District Court ruling that the NCAA prohibition violates the federal antitrust laws. Instead, the Court of Appeals declared that the NCAA rule satisfies the antitrust “rule of reason” doctrine, which effectively permits an antitrust violation where the social benefits outweigh the social harms (raising the question as to whose “benefits” count and whose “harms” don’t.)
Under the new law, college athletes in California will be permitted to accept commercial endorsements and hire agents beginning in 2023. Hopefully the Fair Pay to Play Act will inspire similar legislation in other states, and finally allow all student athletes to share in the millions of dollars of commercial revenues they generate every year.
We will continue this important conversation during our annual CLE program.
In Memoriam Donald Dunner
In Memoriam
Donald R. Dunner: A Leader in Patent Legal Practice and A Champion for IP Social Justice
On October 16, 2019, the legal profession and the IP social justice community lost one of their pillars when Donald R. Dunner, name partner at Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, passed away at the age of 88. Donald R. Dunner enjoyed a distinguished legal career and leaves an indelible imprint on contemporary patent law and practice.
One of the most accomplished and influential patent lawyers of his generation, Don Dunner helped to shape the contours of contemporary patent legal practice, not only through his successful representation of a wide array of clients, but also in supporting the progressive evolution of patent law. Under his auspices in 2003, the Finnegan law firm began its collaboration with IIPSJ to establish the nation’s first IP and Social Justice Continuing Legal Program, developed and implemented by Finnegan attorneys Tom Irving and Esther Lim and hosted by the Howard University School of Law. Now in its seventeenth year, the IIPSJ CLE program continues to educate IP attorneys and policy makers from around the nation as to the social justice obligations and opportunities presented by IP protection.
One of the program’s most highly regarded features is the Judicial Roundtable Panel, wherein Don Dunner would moderate an annual open conversation with sitting members of the federal judiciary and explore cutting edge developments in the field of IP law, including important issues which implicate the law’s social justice resonance in the total political economy. Don would often use this opportunity to ask the judges to share guidance for students in the audience seeking clerkships. It was Don Dunner’s stature and reputation in the patent bar that attracted leading jurists to share their insights and perspectives and thereby make the Judicial Roundtable Panel and the IP and Social Justice CLE program a unique and highly respected professional education experience.
While Don Dunner’s practice impacted major issues in patent law, his professional efforts went beyond “top down” approaches to improving the field. A thoughtful and earnest mentor, Don Dunner guided the professional development of many junior attorneys, and along with many of his colleagues at the Finnegan law firm, he was personally engaged in supporting initiatives to enhance racial and gender diversity within the IP bar. Through these efforts many attorneys gained exposure to IP legal practice and the opportunity to participate in IP-oriented internship programs and full-time practice at Finnegan and other IP law firms, and to practice IP law in various corporate in-house counsel and government legal departments.
Donald R. Dunner leaves an impressive legacy in the field of IP legal practice. From his work in various governmental commissions and studies to evaluate and improve the patent system, to his service as president of the American Intellectual Property Law Association, Chair of the American Bar Association’s IP Section, and as a recipient of the AIPLA Board of Director's Excellence Award, Don Dunner contributed much to the profession he cherished. He will be greatly missed by all of us who had the privilege to work with him, even as we continue to appreciate his enduring impact on IP legal doctrine, professional education, and the social justice aspirations of IP protection.
Arts and Entertainment Advocacy Clinic
Services offered: The Arts & Entertainment Advocacy Clinic allows students to develop substantive legal knowledge in copyright and related areas of law as well as practical skills in research, writing, and advocacy by counseling clients and preparing legal and policy documents on behalf of artists and creators.
Information Packet for the Legal Clinic - Practical Preparation of Patent Applications.
Glushko Samuelson Intellectual Property Law Clinic
Services offered: The full range of intellectual property specialties — copyright, patent, trademark, and beyond — in a variety of settings — including client counseling, rights acquisition, transactional lawyering and negotiation, litigation, and administrative and legislative advocacy.
Eligibility criteria: Individual creators and users of intellectual property, small businesses and communities of rights holders and consumers, not for profit institutions and associations, and other entities.
Regions covered: All
Fees charged: Free, however clients generally must pay for other costs of legal representation, such as governmental filing fees and litigation-related costs.
Detkin Intellectual Property and Technology Legal Clinic
Services offered: The IPC provides pro bono transactional patent, copyright, trademark and trade secret services to individuals, non-profit and for-profit clients in technology and the arts.
Entrepreneurship Legal Services
Services offered: Start-up company IP issues, such as trademark applications, provisional patent applications and patent research.
Eligibility criteria: Must be a start-up company without significant revenue.
Regions covered: All
Fees charged: $25.00 per hour for student time