You may have seen that we're going to be starting a live client clinic, with the first students to be enrolled in January. I am the acting director for the moment, but we're searching for a full time person to run the clinic for us. The following is our ad. If interested, please feel free to send your resume to me:

 

Clinical Teaching Position at the University of Louisville School of Law

The University of Louisville School of Law seeks applications for a tenure-track clinical position. The successful candidate will work in the school's newly established clinic located in downtown Louisville, Kentucky. Because the clinic is new, its precise focus has not yet been defined. The faculty has agreed that as a general matter, the clinic will eventually have two branches: a transactional branch and a branch involving representation in civil cases. We anticipate that the particular skills, interest, and experience of the new faculty member will help define the particular focus of the clinic. Thus, this position affords a unique opportunity to help shape the mission of the new clinic. We will consider candidates specializing in transactional work, civil dispute resolution, or a combination. Candidates who can contribute to the diversity of the faculty are especially encouraged to apply.

Qualified applicants would ordinarily have at least 4 years of experience, either in practice or in combination with clinical teaching. Other relevant experience will be considered. Applicants must be a member of the Kentucky Bar or must attain membership by examination or reciprocity within one year of joining the faculty.

The University of Louisville School of Law is a relatively small institution located in the dynamic city of Louisville, Kentucky. It is the fifth oldest American law school in continuous operation, and was one of the first to adopt a mandatory public service requirement for all students. The law school is part of a major research institution, providing opportunities for cross-disciplinary work.

Interested candidates may submit an application to Professor Lars Smith, chair of the clinic committee, at the School of Law (502.852.7273). All applications should include a proposed "mission statement" for the clinic, discussing the particular area(s) on which the applicant would focus the clinic's activities.

Send resume to: 

Lars S. Smith
Professor and Samuel J. Stallings Chair in Law
University of Louisville
Louis D. Brandeis School of Law
2301 S. Third Street
Louisville, KY 40208
Tel: 502-852-7273
Fax: 502-852-0862

 

 

This is a picture of the Silk Street market in Beijing. This market is well known as the place in Beijing where you go to buy knock-off name brand items, such as clothing and handbags. China has been cracking down on this, as you can see from the 3 story poster on the outside of the building with a picture of Jackie Chan saying "Protect the movies, say NO to piracy!" Of course, just because you put up a 3 story poster declaring that piracy is bad doesn't mean that you can't buy those things. Right inside the door you can buy knock off Hugo Boss and Lacoste shirts, Ferrari Jackets, and Gucci handbags. Right next door, there was a place selling pirated DVDs (you had to go into a secret room hidden behind a door masquerading as shelving, which was opened by remote control, to see what was available). But officially, they're against it. Of course, I have been offered fake Rolexes in New York and Boston, so it's not like it doesn't happen in the US.

With all of the sad news coming out of China about the extent of the devastation from the earthquake and it's aftermath, I wanted to post some pictures I have of students at Zhongnan University having a candlelight vigil for the survivors.

The students also raised money to help the victims. I saw the same kind of response at United International College in Zhuhai.

 

Llew Gibbons and I were invited to lecture at new college located in the southern China city of Zhuhai called United International College.It was started 3 years ago as an offshoot of Hong Kong Baptist University, in cooperation with Beijing Normal University in Zhuhai. It represents a new type of higher educational institution in China, because it is privately operated, and is modeled on a small, U.S. liberal arts college. It intends to have an undergraduate enrollment of 4,000 students, very small by Chinese standards. Many of the classes are taught in English. The school emphasizes what the Executive Vice- President, Edmund Kwok, described to me as "whole person education," which includes such features as the "voluntary service program" which encourages the students to volunteer in the community and around China, such as teaching in Tibet. Although the school, you get the sense that there is a real entrepreneurial spirit among the faculty, pushed by Edmond Kwok. In there first year, they admitted less than 300 students, and were renting space from Beijing Normal University. By the start of their third academic year, student enrollment is now around 2,200, they have a brand new facility, with wired classrooms, a student art exhibit hall, and full library.

I lectured on issues in IP law, to two different classes: International Relations, and Broadcast Journalism. I lectured in the International Relations class on trademark law and international treaties (specifically, the Paris Convention and the Trade Related Aspects of Intellectual Property to the General Agreement on Tariffs and Trade), and on derivative works and the right of publicity in the Broadcast Journalism class.

I was very impressed by the school. It seems like an exciting and vibrant instituion, it's staff dedicated to delivering a high quality, challenging and internationally focussed educational experience to its students. It does this while straddling two worlds - that of Hong Kong and mainland China. It's link to Hong Kong (it will be granting degrees from Hong Kong Baptist University) allows it some freedom to operate as an independent school. And yet it's mission is in great measure directed to students from the mainland.

As an example of how the world is getting smaller, our invitation came from Professor Morton Holbrook, who spent 32 years in the foreign service. It turns out that Professor Holbrook is a native Kentuckian, originally from Owensboro. He grew up with John Helmers, the father of my neighbor and friend John Helmers, Jr., who is an attorney in Louisville. Although Professor Morton now lives permanently in Zhuhai, he claims Kentucky as his U.S. domicile. He still keeps up with news from Kentucky through his subscription to the local Owensboro newspaper (Messenger Inquirer, I would assume). However, he did not have a Derby party this year, both because the race went off at 6:04 am in Zhuhai, and due to the fact that there were no other Kentuckians in Zhuhai to share a mint julep with that early in the morning.

During my stay in mainland China I managed to visit a number of religious venues, including a catholic church in Beijing, a Daoist temple in Wuhan, and a Buddhist Temple in Guanzhou. We are accustomed to believe that all religious worship is banned in China, however, this was not consistent with what I saw. I found it somewhat surprising that in these public venues we found people openly worshipping. In the attached pictures there is an image of burning incense sticks in the Daoist temple, as well as a picture of a decorated statue of what I believe is Lao Tsu. In the Buddhist Temple we saw people worshipping the Buddha, and giving offerings to the Goddess of Mercy. At the Catholic church, people were taking their wedding pictures. So on the surface, at least, it appears as though religion is tolerated.

 

The reality is more nuanced, of course. I had a discussion with a member of the faculty about whether a communist party member could be religious, and he said that this depended on how you defined "being religious." If you are not a party member, it seems that you are free to hold whatever beliefs you want. If you are a party member, it is more difficult. Although the party does not prevent people from following the philosophy of a particular faith, I deduced that openly following a particular faith would not be consistent with party doctrine. How this distinction is made in practice is not entirely clear to me. At the end of the day, it seems as if the government has some limited tolerance for traditional faiths. For example, Franklin Graham, Billy Graham's son, was in China while I was here. He visited church leaders in China as CEO of the Billy Graham Evangelistic Association. (His organization later donated $285,000 to help victims of the earthquake) Obviously, he had to have permission from the government to do this. However, on the flip side, it is my understanding that the Chinese government and the Catholic church in China have been slow to agree on the appointment of bishops. As reported in China Daily, "The mainland has 5 million Catholics in 97 dioceses, of which 40 do not have bishops."

 

As I mentioned in a previous post, I was invited to visit China by the President of Zhongnan University of Economics and Law, to lecture to graduate students in the Center for Studies of Intellectual Property Rights (referred to as the IP center, or the IPRCN). This visit was coordinated by Professor Llew Gibbons, who is a Fulbright Lecturer at Zhongnan University. I was asked to lecture to Professor Gibbons's students, all of whom are law school graduates at the university to obtain either a masters or Ph.D. in intellectual property law. He is teaching a survey course on U.S. intellectual property law, and so I used the opportunity to lecture on two issues: the derivative work right under the U.S. Copyright Act, which led nicely into my second lecture on IP protection for data stored in radio frequency identification chips (RFID).

 

I was very impressed by the knowledge and interest of the students. They were well schooled in the basics of U.S. IP law, participated in class discussions, and asked excellent questions. Obviously Professor Gibbons had done a great job over the last few months teaching the students, getting them over their fears of talking in class. My favorite part of the RFID lecture was when one student stood up (they all stood when asking or answering questions - I should make my US students do that!) and told me he disagreed with my analysis. In fact I had skipped over an issue on database protection under US copyright law in order to shorten the presentation, and the student caught the leap in the logic. What was impressive is that even though Chinese students generally believe that it is rude to disagree with a professor, this student had become comfortable enough in this class to be able to challenge the information being provided. We had a great exchange, and it allowed us to tease out a more nuanced issued related to U.S. copyright law, and allowed me to compare U.S. law and EU law. We then discussed what the Chinese position on database protection was (similar to U.S. law, as it turns out). It was a great teaching moment for the student and the class, and a neat experience for me. I look forward to teaching the students at the IPRCN, should I be fortunate enough to be invited back.

As visitors to China, Professor Gibbons and I were given a rare opportunity this week to observe a copyright case in the Wuhan Intermediate People's Court. While the courts are generally open to Chinese citizens, foreigners are not allowed to observe without permission of the court. Professor Gibbons' research assistant at Zhongnan University of Economics and Law was able to obtain this permission for us. In order to improve the handling of IP disputes, China has created a special system for trying cases involving intellectual property. Cases are heard in The Intellectual Property Trial Chamber of Intermediate People's Courts, not a lower trial court. The Intermediate People's Court is an intermediate court of appeal, although it is the court of first instance for IP cases. I found the following site on the web that seems to do a nice job of explaining the court system.

We observed a copyright case involving the allegedly infringing broadcast of a Chinese movie. The local Wuhan TV station had broadcast a 2003 film made in Hong Kong (it was described to me as a Chinese James Bond type movie). They edited the movie extensively by adding in advertisements, and had a commentator talk about the movie during the breaks. The plaintiff was the Hong Kong distributor, and allegedly its producer. The Wuhan company had licensed the film from a Beijing company, which had apparently obtained rights to the movie in mainland China. The two main disputed issues were whether the Hong Kong company could prove it was the owner of the copyright, and whether adding the advertising and commentary created a derivative work that infringed the copyright.

The case was heard by a panel of 3 judges. The panel was lead by a presiding judge, although one of the other judges had direct responsibility for the case. As I understood the procedure, the case consisted of two basic phases, the cross examination of evidence, and the debate. The cross examination phase had 3 parts. First, the lawyers gave their opening statements; second, they presented their arguments about the disputed evidence; and third, the judges examined the lawyers about the facts. Interestingly, there were no witnesses, not even a witness box. Apparently IP cases are handled almost entirely by documentary evidence. While it is possible to have witnesses testify, it is rare, because the Chinese civil courts do not have the power to compel testimony, according to the presiding judge. He was quite surprised, and impressed, with the subpoena and contempt powers an American judge has to force people to come to court. Discovery is now possible in China, and so the only evidence that is examined is the disputed evidence.

The second phase was the debate, or what I would call closing arguments. The debate period is literally a debate, because both sides have an opportunity to rebut the other side's arguments. The trial lasted about 2 hours. I would compare the trial to a summary judgment hearing in our system. The judges took the case under advisement, and told us they expected to issue a decision within a month or so.

Here are a couple of pictures from the court: 

Picture of Bench

Picture with Judge responsible for case.

 

First, a note about the earthquake in Sichuan province: I did not feel anything when the quake hit. Wuhan is located roughly 600 miles due east of Chengdu, the city near the earthquake's epicenter. Even though Wuhan appears to be closer than Beijing to where the quake hit, many people here did not notice the event. The information available here appears to be similar to what is being reported online at sites such as Yahoo, that the loss of life is incredible, and that whole towns were decimated. So far, I have not encountered anyone who has had family hurt by the quake, and to some extent, life goes on here. Even so, everyone is in shock about the extent of the devastation.

 

On a more trivial note, my visit continues to be fascinating. I visited the Great Wall and the Ming Tombs over the weekend. The wall is a tremendous structure - much like the Forbidden City, it is difficult to appreciate its size without actually visiting. According to my limited knowledge of its history, the Great Wall started out as a collection of separate walls that were later joined together by various emperors. Although the Great Wall was apparently never directly breached by invaders from the North, it could be surmounted with the assistance of a well-placed bribe to a sentry. I visited the Great Wall at Badaling, which is just outside of Beijing. It's a busy tourist location, so we arrived at 8:30 to beat the crowds. By the time we left at 10:30, it was hard to maneuver on the wall. Afterwards, we visited the Ming Tombs, specifically the Ding Ling tomb site, the underground tomb of the Wenli emperor, which has been fully excavated. Unfortunately, the site suffered under the cultural revolution, so much of the contents were lost. Even so, it is an impressive site. Further updates to follow about my attendance at a trial involving a copyright dispute, and a Chinese tea ceremony.

 

Today I got to visit the Forbidden City. It is difficult to explain how huge a site it is. I was going to spend a lot of time explaining the dimensions and scope of it, but I'll be lazy and just insert a link to the wikipedia site. It is clear that the Chinese government has spent a great deal of time and effort to renovate the facility. Some of the throne rooms are still closed for renovations, so I missed the opportunity to see how a University should treat its faculty. However, I did learn how the faculty should properly kowtow to the dean. According to my host, Professor Llew Gibbons who is in China as a Fulbright lecturer, the coffee shop in the Emperor's garden used to be a Starbucks, but is now a locally branded Chinese coffee shop. The prices remain about the same (I did not have a cup, so I don't know how it tastes). So much for American trademark hegemony. On the flip side, Kentucky residents will be proud to know that KFC is the largest fast food chain restaurant in China, with over 2,500 outlets (including some Pizza Huts), according to the China Daily newspaper. In an article I read it said that most of Yum! Brands profits will come from China this year.

 

Professor Gibbons and I did have Peking Duck at the Li Qun Roast Duck restaurant off the beaten path in a houtong area. A "houtong" is a residential neighborhood from the Qing dynasty, where four homes share a common courtyard. While they were prevalent throughout Beijing in the past, many have been destroyed in preparation for the Olympic games, being replaced by more modern facilities. This houtong is located right near the Qianmen gate area near Tiananmen Square. The food was terrific. It was not your typical touristy Beijing Duck restaurant. Afterward, we walked around Tiananmen Square, and were accosted by vendors every 5 feet. I finally broke down and bought what I believe to be fully licensed 2008 Beijing Olympics kites and a hat. No really. I'll post a picture when I can.

 

I was fortunate enough to receive an invitation to lecture at the Center for Intellectual Property Rights at Zhongnan University of Economics and Law, one of the top 100 universities in China according to the Minister of Education. It is the home the National Center for the Study of Intellectual Property. Zhongnan is unique in that intellectual property is its own school; it is not part of the school of law. This shows the new emphasis that China has on intellectual property rights. The University is fortunate to have an internationally known intellectual property scholar as its president.

However, I am not yet in Wuhan, but staying a few days in Beijing. And what was I faced with, but a case of famous mark dilution, at least under US law. Please see the attached image. Can you identify the famous U.S. trademarks? The text under the symbols reads in English "Jewelry & Jade Garden," so no likelihood of confusion.

I walked around near my hotel a little, before heading back to finish grading (pathetic, I know). My first impression of the city is that is a very developed, cosmopolitan city, much like most other capital cities. However, I don't think I ever had the opportunity to eat fried scorpion on a stick anywhere else. And, no, I did not eat any. I am a gastronomic wimp.

Tomorrow, I will visit the Forbidden City and the summer palace, and hopefully have some Peking Duck (Is that a geographic indication of origin?). More updates to follow.