Author: Papers

Copyright and Creative Incentives: What We Know (and Don’t)

[Christopher Jon Sprigman] Abstract: The dominant justification for copyright in the United States is consequentialist. Without copyright, it is claimed, copyists will compete away the profits from new artistic and literary creativity, thereby suppressing incentives to create new artistic and literary works in the first place. This is a sensible theory. But is it true? On that question, we have little evidence.

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Trade Secrets and Innovation: Evidence from the ‘Inevitable Disclosure’ Doctrine

[Paper by Andrea Contigiani, Iwan Barankay and David H. Hsu] Abstract: Does heightened employer-friendly trade secrecy protection help or hinder innovation? By examining U.S. state-level legal adoption of a doctrine allowing employers to curtail inventor mobility if the employee would “inevitably disclose” trade secrets, we investigate the impact of a shifting trade secrecy regime on individual-level patenting outcomes…

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Copyright Reversion to Authors (and the Rosetta Effect): An Empirical Study of Reappearing Books

[Paper by Paul Heald] This study compares the availability of books whose copyrights are eligible for statutory reversion under US law with books whose copyrights are still exercised by the original publisher. It finds that 17 USC § 203, which permits reversion to authors in year 35 after publication, and 17 USC § 304, which permits reversion 56 years after publication, significantly increase in-print status for important classes of books.

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The International Debate on Generic Medicines of Biological Origin

German Velasquez South Centre Research Paper 82 November 2017. The debate on generic medicines is not new. What makes it different today is that attacks levelled against biological products are couched in ever more “technical” and abstruse language that confuses even the World Health Organization (WHO). Innovative biological drugs, which have been introduced on the market in the past 20 to 30 years, make up, in terms of numbers, no more than 2 per cent of the WHO Model List of Essential Medicines but, in terms of cost, account for 15 per cent to 20 per cent of national drug expenditure. The high price of biological drugs stems mainly from two new factors: first, a change in the pharmaceutical industry’s approach to price-setting and, secondly, the introduction of additional barriers to the entry of generics into the market. In any debate on the impossibility of producing “identical” drugs, it should be made clear that what is at stake is not identical products but therapeutic equivalents. What matters to the patient, after all, is whether or not the drug can prevent, cure or mitigate the effects of the illness. Click here for the full paper (PDF)...

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A Copyright Limitations Treaty Based on the Marrakesh Model: Nightmare or Dream Come True?

Abstract: With the adoption of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled in 2013, the international copyright community has shown its willingness to take further steps in the harmonization of limitations and exceptions in the field of copyright. However, the Marrakesh Treaty is only the tip of the iceberg. Its preparation and negotiation took place against the background of a much broader debate over the introduction of so-called “ceilings” in international copyright law: binding rules that set a maximum level of permissible protection. While the Marrakesh Treaty had success and became reality, the bigger project of regulating the ceilings of copyright protection in an international instrument is still pending.  Hence, the question arises whether the experiences with the small step of adopting the Marrakesh Treaty are encouraging enough to take the giant leap of discussing ceilings of copyright protection and establishing a general Copyright Limitations Treaty. To answer this question, the following analysis will first shed light on the peculiar configuration of the Marrakesh Treaty. The Treaty combines both very specific and very open rules on L&Es for blind and print-disabled persons with the abstract criteria of the “three-step test” known from Article 9(2) BC, Article 13 TRIPS and Article 10 WCT. As a result of this treaty architecture, the objective to offer maximum legal certainty in respect of use privileges for blind, visually impaired and print-disabled...

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The User Rights Database: Measuring the Impact of Copyright Balance

Sean Flynn and Michael Palmedo PIJIP Working Paper 2017-03 Introduction: Copyright law is the subject of increasingly contested debates around the world. Much of this reform is being driven by a perceived need to adapt outdated copyright laws to the digital age. Copyright owners often advocate that these reforms should center on expanding the length, scope, and enforceability of exclusive rights. However, there is a growing recognition that the digital environment warrants expansions in so-called user rights – rights to use copyrighted material without the permission of owners to facilitate a range of modern activities from social media to Internet search. Few empirical studies analyze the impact of different ways to expand user rights for the digital environment. Should we designate specific digital activities – like indexing, or linking or forwarding an email – that are lawful? Alternatively, should we adopt broader principles of fairness that can be applied to new uses over time? Some theories suggest the second option – adoption of user rights that are more open to unforeseen purposes subject to a flexible test of the fairness – is better for enabling innovation and many modern creative practices.  But the existing empirical literature on copyright says little about whether more open and flexible or closed and narrow user rights are in fact better for the core purposes of copyright such as promoting innovation and creativity. One...

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Exploring Patent Barriers to Cancer Treatment Access in South Africa

Catherine Tomlinson, Heather Moyo, Zain Rizvi, Claire Waterhouse, Salomé Meyer and Marcus Low on behalf of Fix the Patent Laws and the Cancer Alliance.  Click here for the full report (PDF) Executive Summary:  Cancer rates in South Africa are expected to rise significantly over the next two decades.[4] In sub-Saharan Africa, the number of new cancer cases is expected to increase by more than 85% from 2008 to 2030.[5] By then, for every four deaths from HIV/AIDS in the region, there will be three deaths from cancer.[6] Along with a growing cancer burden, states will be confronted with rising and unaffordable prices for cancer medicines. For example, while the volume of oncology medicines procured in South Africa remained the same between 2015 and 2016, private medical insurers spent an increasing share of their medicine expenditure on oncology treatments – from 8.8 to 9.3%.[7] Specialty medicines, in particular, pose a significant burden. One report found that specialty medicines used in oncology had an average cost of ZAR 23,533 per item in 2016.[8] Indeed, oncology specialty medicines accounted for only 13% of specialty medicines by volume, but made up 31% of expenditure for all specialty medicines. This study seeks to investigate how South Africa’s patent laws influence access to cancer medicines by analysing the patent status and length, affordability of, and access to 24 case study medicines. Our research demonstrates that South...

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Innovation, Intellectual Property, and Development: A Better Set of Approaches for the 21st Century

Dean Baker[1], Arjun Jayadev[2] and Joseph Stiglitz[3]  | Full Paper (CC-BY) Introduction:  The twenty first century global economy will differ from that of the twentieth in at least two critical ways. First, the weight of the developing world in the global economy will be substantially higher. In particular, emerging economies such as China, Brazil, India and South Africa will have a more important role to play based on their pace of growth. Second, the ‘weightless economy‘ – the economy of ideas, knowledge and information – will become an increasingly important fraction of economic output and ever more important for economic growth and development, both in developed and developing economies. These two facts alone would suggest that economic institutions and laws created in the twentieth century, to manage the growth of currently advanced industrialised economies, will be increasingly inadequate to govern global economic activity. Nowhere is this more evident than in the area of intellectual property rights (IPRs). Today’s global intellectual property regimes have been strongly affected by the historical evolution of IPR in the United States and in the advanced industrialised countries over the last century. Certainly, the adoption of the World Trade Organization’s Trade Related Intellectual Property System (TRIPS) reflects the understanding of the management of intellectual and knowledge advancement that prevailed in the last quarter of the previous century and the structure of economic power at that moment.[4]...

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When the Chinese Intellectual Property System Hits 35

Author: Peter Yu Abstract: In 1982, China promulgated its first modern intellectual property law, offering protection to trademarks. Since then, China adopted the Patent Law in 1984, the Copyright Law in 1990 and the Anti-Unfair Competition Law in 1993. In December 2001, China finally became a member of the WTO, assuming obligations under the TRIPS Agreement. One can certainly debate about the actual age of the modern Chinese intellectual property system, but it will not be too far-fetched to suggest that the system began in the early to mid-1980s and is now entering, or approaching, its middle age. What exactly does a middle-aged Chinese intellectual property system mean? Will the system hit its prime? Or is it about to face a hard-to-predict mid-life crisis? Written for a special issue on 35 years of the Chinese intellectual property system, this article explores what it means for this system to hit 35. It begins by briefly recapturing the three phases of development of the system. In the style of David Copperfield, it discusses the system’s evolution from its birth all the way to the present. The article then explores three different meanings of a middle-aged Chinese intellectual property system – one for intellectual property reform, one for China and one for the TRIPS Agreement and the global intellectual property community. Citation: Yu, Peter K., When the Chinese Intellectual Property System Hits...

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NAFTA 2.0 and Intellectual Property Rights: Insights on Developing Canada’s Knowledge Economy

Centre for International Governance Innovation, Link (CC-BY-NC-SA) Authors: Bassem Awad, Ariel Katz, Michael Geist, Howard Knopf, Teresa Scassa, Ysolde Gendreau, and Konstantia Koutouki …Given the fast-paced negotiations of the North American Free Trade Agreement, and as part of efforts to support Canada’s negotiators and policy makers with clear, simple and factual analyses of Canada’s key interests within the negotiations, the International Law Research Program at the Centre for International Governance Innovation commissioned a series of essays addressing intellectual property rights. A modernized chapter for intellectual property rights could have a deep impact on the emerging knowledge economy in Canada and for the people who turn ideas into innovations. The authors featured in this special report provide important recommendations to support the development and growth of an innovation economy in Canada with respect to the copyright system, the patent system, as well as Canada’s geographical indications rules. The essays also point to some emerging issues that have yet to be considered within the existing NAFTA. In light of Canada’s recent international dealings and domestic commitments, these areas — big data and Indigenous traditional knowledge, in particular — form important considerations. This series brings together a community of scholars and practitioners to share, through a variety of contexts, some of the requirements of a modernized NAFTA Chapter...

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TPP, RCEP and the Crossvergence of Asian Intellectual Property Standards

Author: Peter Yu Abstract: The debate on convergence and divergence has garnered considerable attention from policymakers and commentators involved in regulatory developments in Asia. The recent completion of the negotiations on the Trans-Pacific Partnership (TPP) and the still ongoing negotiations on the Regional Comprehensive Economic Partnership (RCEP) have added fuel to this debate. Given the different leadership in these two mega-regional agreements and the exclusion of many RCEP parties from the TPP negotiations, it will be interesting to see how the agreements will affect the future efforts to set regional intellectual property standards. It will also be curious to see whether the draft and finalized standards could reveal policy preferences of the participating countries. This chapter begins by examining the regulatory convergence narrative, focusing on efforts to harmonize Asian intellectual property standards through the WTO TRIPS Agreement and TRIPS-plus bilateral, regional and plurilateral agreements. The chapter then turns to the regulatory divergence narrative, discussing the region’s inherent nation-based differences, the development considerations involved in developing Asian intellectual property laws and policies, and the growing rivalry between the TPP and the RCEP. This chapter concludes by suggesting that neither the convergence narrative nor the divergence narrative presents a complete and satisfactory story for a region as large, complex and diverse as Asia. Instead, the chapter contends that the region is likely to see “regulatory crossvergence,” which features a simultaneous convergence and divergence of regulatory standards. Such crossvergence...

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Using Fair Use to Preserve and Share Disappearing Government Information

William Cross, Director, Copyright and Digital Scholarship Center, NCSU Libraries Association of Research Libraries Issue Brief (CC-BY) Click here for the full Issue Brief (PDF) Government Information at Risk Access to government information is a fundamental principle in a democratic society. Particularly in the digital environment, government information is a driver for economic and social progress as well as a predicate for an informed citizenry.[1] From 2009 through 2016, open government was a hallmark of the Obama administration, which observed that, “openness in government strengthens our democracy, promotes the delivery of efficient and effective services to the public, and contributes to economic growth.”[2] Libraries and archives have historically served as stewards of government documents, and in recent years, these institutions have paid special attention to the unique vulnerability of information during changeover in presidential administrations. Since 2008, these efforts have been spearheaded by archivists through projects like the End of Term Web Archive. In 2017, these issues have particular currency as contested information has been removed from numerous government websites and government officials are increasingly relying on commercial social media platforms such as Twitter to communicate with the public.[3] In response, many librarians, scholars, archivists, and other members of the public have come together to preserve government information with projects such as DataRefuge and Libraries+ Network. Complex Legal Issues in Government Information Despite a clear connection to their historical...

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Drugs, Drugs Everywhere But Just Not for the Poor

Author: Srividhya Ragavan Abstract: This article attempts to understand the legitimacy and limitations of US involvement in another country’s sovereign actions taken expressly in the public interest, or to protect public health, such as the compulsory licensing of pharmaceuticals. The first section takes the example of compulsory licensing as a legitimate sovereign action and delineates its scope in the light of the international trade obligations under TRIPS. The second section discusses the rights and obligations of the USTR vis-à-vis the United States’ sovereign trading partners and how international trade obligations intersect with the rights of the USTR. The third section outlines the legality of the USTR’s actions in light of the United States’ international obligations. The fourth section discusses the question of whether — and if so, how — the other international organisations, particularly the World Intellectual Property Organization (WIPO), can be involved in restoring the legitimacy of sovereign actions taken in the public interest. The article’s conclusion outlines the importance of co-ordination amongst international organisations as a critical element to achieve the objectives of the trade and developmental agenda. Citation: Ragavan, Srividhya, Drugs, Drugs Everywhere But Just Not for the Poor (August 15, 2016). W.I.P.O.J, Issue 2, 2016. Full paper on SSRN:...

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Copyright Easements

Author: Jason Mazzone Abstract: When authors assign the copyright in their work to publishers, some productive uses of the work are impeded. The author loses opportunities to use or to authorize others to use the work unless the publisher consents; the publisher does not permit all uses of the work that the author would like or that would benefit a consuming audience. Copyright easements can solve the problem. Under a system of copyright easements, an easement holder would have designated rights in a creative work that would permit uses of the work that would ordinarily require permission of the copyright owner. If the author later assigns the copyright to a publisher, the copyright is held subject to the rights of the easement holder. The easement thus ties the author’s own hands: the author can no longer assign an unfettered copyright — and the publisher can no longer ask for it — because of the existence of the easement holder’s interests in the work. Copyright easements can protect the ability of authors, after they assign the copyright, and of others, to make productive uses of works in ways that are unlikely to affect the publisher’s economic interests. Copyright easements can also ensure that uses of works that do not require a copyright owner’s permission but which publishers frequently seek to prevent, such as fair uses, could occur more easily. Copyright...

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How Licenses Give Access, But Can Also Take It Away

Release of the “Literature review on the use of licensing in library context, and the limitations this creates to access to knowledge” [International Federation of Library Associations, Link (CC-BY] The way libraries acquire content is in transition. With a growing share of digital material in library collections, licences are a fact of life. However, and as many in the library world have already experienced, while licenses give access to knowledge, they can also restrict it. IFLA’s Advisory Committee on Copyright and other Legal Matters has therefore commissioned a literature review on the use of licensing in library context, and the limitations this creates to access to knowledge. The study, written by Svetlana Yakovleva and released today, looks through the available research, from theoretical analyses to practical survey work on libraries’ experience of licensing. It identifies the main limitations associated with copyright licenses in the library context, sets out how they impact both access and use of digital content, and provides examples. The work underlines, among other issues, how access through licences does not necessarily mean ownership of the content by the library; how licenses can override the rights granted by the legal framework, placing private law in front of public; how anti-piracy measures can easily become anti-user measures and be detrimental to access to information; or how licenses can compromise privacy, by making the monitoring of data by rightsholders easier. The...

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Data Commons for Food Security

Jeremiah Baarbé, Meghan Blom, Jeremy de Beer Proceedings of the 2017 IASC Conference Open AIR Working Paper No. 7/17 Full text on SSRN Executive Summary: Agricultural and nutritional data is an increasingly vital resource in the advancement and innovation of farmer organizations, food production, value chain development, and provision of services (Jellema, Meijninger, and Addison, 2015). Modern farmers rely on computational and precision agriculture to inform decisions. Datasets such as weather data, market price data, and agricultural inputs fuel these tools, which range from simple graphs to emerging artificial intelligence networks (GODAN, 2015). Access to and use of such data can play a key role in addressing global food insecurity by “enabling better decision making, transparency and innovation” (Open Data Charter, 2016). With this growing recognition however, is the understanding that ownership rights remain a major factor in the access to and use of data, distinct from yet, as important, as the availability of education, skills, technology, infrastructure, and finances (de Beer, 2016). The importance of data for agriculture underscores a growing view that data has replaced oil as the world’s most valuable resource (e.g. The Economist, 2017). For example, artificial intelligence relies on extremely large datasets to teach algorithms how to solve complex problems. As a global resource, the data commons proposed in this paper applies beyond agriculture to any data infrastructure. However, agriculture is a fitting locus for...

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UCT IP Unit co-publishes IP, Innovation and Development paper authored by Nobel Prize winner Joseph Stiglitz et al.

[University of Cape Town IP Unit Press Release, Link] Together with two institutions in India and Brazil, UCT’s IP Unit has just co-published a paper with the title ‘Innovation, Intellectual Property and Development: A Better Set of Approaches for the 21st Century.’ The paper is authored by Dean Baker, Associate Professor Arjun Jayadev and Nobel Prize winner and former Chief Economist of the World Bank Professor Joseph E. Stiglitz. It is part of a series of arguments from AccessIBSA: Innovation & Access to Medicines in India, Brazil & South Africa, a project supported by the Shuttleworth Foundation. In the paper’s introduction, the authors state that “[i]f the knowledge economy and the economy of ideas is to be a key part of the global economy and if static societies are to be transformed into ‘learning societies’ that are key for growth and development, there is a desperate need to rethink the current [intellectual property] regime and to allow for a much less restrictive flow of information and knowledge. Moreover, if we are considering questions of ethics, the current regime is deeply regressive and inefficient.” The paper aims to provide an intellectual basis to think about the relationship between development, intellectual property and innovation; where we currently are and what alternatives are available. The authors outline the basic logic for the implementation of intellectual property rights and detail alternatives to providing private monopolies to promote innovation. The paper then turn to...

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A Comparative Analysis of the Secondary Liability of Online Service Providers

Author: Graeme Dinwoodie Abstract: This Chapter analyzes the secondary liability of online service providers from a comparative perspective, drawing on national reports on the question submitted to the Annual Congress of the International Academy of Comparative Law. The Chapter highlights two different approaches to establishing the circumstances when an intermediary might be liable: a “positive” or “negative” definition of the scope of liability. The former flows from the standards for establishing liability; the latter grows out of the different safe harbour provisions that immunize intermediaries operating in particular ways, although there can obviously be connections between the standard for liability and the conditions for immunity. The Chapter also considers the mechanism (“Notice and Takedown”) that in practice has come in many countries to mediate the responsibilities of right owners and service providers for a range of unlawful conduct that occurs using the facilities of the service providers. This mechanism typically reflects OSP responses to potential secondary liability, and have developed both in contexts when that liability is defined positively and when it is framed in negative terms. But regardless of the varying impetus for the mechanisms, they are largely implemented through private ordering (with some of the concerns that attends any such activity) that is subject to differing level of public structuring and scrutiny. The Chapter also addresses the concept of (judicially-enforceable) “responsibility without liability”, a growing feature of...

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Patent Nonuse: Are Patent Pools a Possible Solution?

Author: Alireza Chavosh Abstract: Studies have depicted that the rate of unused patents comprises a high portion of patents in North America (35% Non-use on average), Europe (37% Non-use on average) and Japan (64% Non-use on average). The importance of the issue of patent non-use is also highlighted within the literature on strategic patenting, IPR policy and innovation economics and in this regards, the literature has paid particular attention to blocking patents. Moreover, the current literature has emphasized on the role of patent pools in dealing with potential issues such as excessive transaction cost caused by patent thickets and blocking patents (overlapping IPRs) that might hamper the use of patents in the market for technology. Accordingly, patent pools may favor the use of the pooled patents through decreasing licensing transaction cost and providing equal and non-discriminatory access of all the members and potential licensees to the pool’s technology. Hence, companies willing to license their patents through patent pools might consider taking advantage of faster, easier, broader and less costly access to the pool licensees. Nevertheless, in this study we argue that the willingness to commercialize patents through pool participation by a pool member is not limited to the commercialization of those patents that the company includes in the patent pool. Becoming a member of a patent pool may also favor the commercialization of blocking and non-blocking patents held by...

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Data Exclusivity Exceptions and Compulsory Licensing to Promote Generic Medicines in the European Union: A Proposal for Greater Coherence in European Pharmaceutical Legislation

Authors: Ellen F.M. ‘t Hoen, Pascale Boulet and Brook K. Baker Abstract: The challenge of providing access to high-priced patented medicines is a global problem affecting all countries. A decade and a half ago the use of flexibilities contained in the World Trade Organization Agreement on Trade Related Aspects of Intellectual Property Rights, in particular compulsory licensing, was seen as a mechanism to respond to high-price medicines for the treatment of HIV/AIDS in low- and middle-income countries. Today a number of upper-income European Union (EU) Member States are contemplating the use of compulsory licensing in their efforts to reduce expenditure on pharmaceutical products. EU regulation of clinical test data protection and the granting of market exclusivity interfere with the effective use of compulsory licensing by EU Member States and can even prevent access to off-patent medicines because they prohibit registration of generic equivalents. EU pharmaceutical legislation should be amended to allow waivers to data and market exclusivity in cases of public health need and when a compulsory or government use license has been issued. Such an amendment can be modelled after existing waivers in the EU Regulation on compulsory licensing of patents for the manufacture of pharmaceutical products for export to countries with public health problems outside the EU. Allowing a public health/compulsory license exception to data and market exclusivity would bring greater coherence between EC regulation of medicinal...

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