Author: Papers

Monopoly v. Openness: Two Sides of IP Coin in the Pharmaceutical Industry

Author: Olga Gurgula Abstract: The pharmaceutical industry extensively relies on the patent system. It actively lobbies for the strengthening of patent protection of its medical products and the results of its efforts may be found in the majority of bilateral and multilateral agreements, including the TRIPS and the most recent TPPA, augmented by private patent strategies pursued by pharmaceutical companies. However, some recent developments show the emerging tendency of implementing different business models by pharmaceutical companies that may mark the beginning of transformation of this industry. Among these developments is an ‘open innovation’ model, which has increasingly been followed by some research institutions and pharmaceutical companies aiming at facilitating the creation of new and affordable medicines, as well as providing transparency in order to enhance safety and efficacy of drugs. This article will discuss these two current developments in the pharmaceutical industry, i.e. strong IP protection against open innovation. Citation: Gurgula, Olga, Monopoly v. Openness: Two Sides of IP Coin in the Pharmaceutical Industry (June 23, 2017). Forthcoming, Journal of World Intellectual Property. Full paper on SSRN:...

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Creator, Rebel, Guardian, Unsuspecting User: Teachers and Modern Educational Practices

Tomasz Kasprzak, Olga Jurkowska, Alek Tarkowski and Anna Buchner Communia Association (CC-0) |  Full Report (PDF) EXECUTIVE SUMMARY:  We asked thirty teachers from five European countries about copyright in schools. Our respondents included teachers implementing education innovations and actively using new technologies. These are our study’s key findings: The best way for teachers to gain familiarity with copyright is to become creators of educational materials. Such creators have two options: either use copyright to protect their work or share it using a Creative Commons license. The other reason why teachers become aware of copyright is related to their students. Teachers have to explain to them how materials may be used legally. The Internet has turned copyright into an important topic in schools. Copying web content and sharing and exchanging proprietary materials compel teachers to pose questions regarding legal issues. The best teachers who are ambitious and innovative have gained copyright knowledge by learning on their own or through supplemental training. In copyright they sell not only a tool that can be helpful in using educational materials but also a source of limitations and uncertainty. Nevertheless, most teachers are bereft of copyright knowledge. They are not taught copyright during their studies, nor do they obtain any support from their own schools or the education system. In their case, copyright prevents them from using digital resources and expanding the range of materials...

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The Global Innovation Index 2017: Innovation Feeding the World

The 2017 Global Innovation Index has been jointly published under a Creative Commons license by WIPO, Cornell University and INSEAD. The WIPO press release on its publication is here.  The “Key Findings” section is reproduced below.  Click here for the full report. Key Findings From the Global Innovation Index 2017, devoted to measuring the innovation performance of 127 economies and the theme ‘Innovation Feeding the World’, six messages emerge. Many of these messages are concerned with innovation as a driver of growth generally. One is concerned specifically with the role of innovation as a way to address the growing need for advances in agriculture and food value chains. Finding 1: Crafting the foundations for innovation-driven growth while the global economy is at an important turning point In a turn of events, growth is reaching a novel and more sustained momentum as the GII goes to print this year. Laying the foundation for innovation-driven economic development is ever more paramount. Related policies that will sustain innovation investments can help transform the cyclical economic upswing into longer-term growth. Such proactive innovation policies are also a powerful antidote to uncertainty because they boost the confidence and thus also the investments of economic actors into the future. In spite of this new growth momentum, investment and productivity growth are still at historic lows. China aside, investment growth in middle-income countries has now fallen...

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Fair Use in the U.S. Economy: The Economic Contribution of Industries Relying on Fair Use

Computer & Communications Industry Association, Fair Use in the U.S. Economy: Economic Contribution of Industries Relying on Fair Use (CCIA: 2017), available online at ccianet.org. Executive Summary:  In 2007, CCIA released a report prepared by Capital Trade, Inc. that was the first comprehensive study quantifying the U.S. economic contribution of industries relying on fair use and related legal provisions. The current report is the third update of the size and performance of the fair use economy. This study finds that in 2014, value added by fair use industries was 16 percent of the U.S. economy, employing 1 in 8 U.S. workers, and contributing $2.8 trillion to U.S. GDP. Meanwhile, the combined value added by industries that are the most reliant on fair use and other limitations and exceptions to copyright protections has more than tripled in size over 2002. From 2012 to 2014, the real output of these primary core industries accounted for 6.7 percent of real GDP growth, six times their current weight in the U.S. economy. The U.S. has developed one of the strongest and most innovation-friendly copyright systems in the world — including both strong enforcement mechanisms to prevent infringement, and strong limitations and exceptions to copyright protection that have become a major catalyst of U.S. economic growth and jobs. Specific exceptions to copyright protection under U.S. law, classified here under the broad heading of “fair...

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Internet Intermediary Liability: WILMap, Theory and Trends

Author: Giancarlo F. Frosio Abstract: To better understand the heterogeneity of the international online intermediary liability regime—with the collaboration of an amazing team of contributors across five continents—I have developed and launched the World Intermediary Liability Map (WILMap), a detailed English-language resource hosted at Stanford CIS and comprised of case law, statutes, and proposed laws related to intermediary liability worldwide. Since its launch in July 2014, the WILMap has been steadily and rapidly growing. Today, the WILMap covers almost one hundred jurisdictions in Africa, Asia, the Caribbean, Europe, Latin America, North America and Oceania. After introducing the WILMap—and the surrounding landscape of recent projects related to intermediary liability—this article aims at discussing advancement in intermediary liability theory and describing emerging regulatory trends. Citation: Frosio, Giancarlo F., Internet Intermediary Liability: WILMap, Theory and Trends (June 2, 2017). 11 Indian Journal of Law and Technology (August 2017), Forthcoming. Full tex on SSRN:...

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Norms-Shifting on Copyright and Fair Use in the Visual Arts Community

Authors: Patricia Aufderheide, Aram Sinnreich, Louisa Imperiale and Carolyn Silvernail Abstract: This study tracks changes in behavior and attitude among visual arts professionals after the development of a code of best practices in the copyright doctrine of fair use. A survey of 2,400 professionals fielded only months after its publication demonstrated broad awareness of the code, informing practice and inspiring efforts to spread awareness. The greatest degree of awareness and change was among editors, several of whose publications altered their copyright policies. Professional and social networks were critical to spreading awareness. Despite a continuing lack of confidence in interpreting the law among individual professionals, the existence of a code contributed to significant change in norms and practices via institutional adoption. This study demonstrates that codes of best practices can affect field behavior, but that change depends on publicity, formal education, continuing support for early adopters, and institutional policy changes. Citation: Aufderheide, Patricia and Sinnreich, Aram and Imperiale, Louisa and Silvernail, Carolyn, Norms-Shifting on Copyright and Fair Use in the Visual Arts Community (September 18, 2016). Forthcoming, Visual Arts Review, Winter 2018. Full text on SSRN:...

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The Intellectual Property Treaty Landscape in Africa, 1885 to 2015

Jeremy de Beer, Jeremiah Baarbé, Caroline Ncube Open AIR Working Paper #4; LINK Innovation policy is important for economic growth and human development.[1] Countries across Africa are, therefore, developing policy to encourage innovation.[2] Measures that address intellectual property (IP) in a locally relevant way are integral to the broader innovation landscape. IP policy is complex and controversial because it seeks to balance protection of, and access to, knowledge. Policy that leads to either an absence or overabundance of proprietary IP rights may discourage innovation.[3] Domestic policymakers may look to research showing that strict IP protection economically advantages developed countries while disadvantaging developing countries.[4] Similarly, they may be presented with research supporting a contrary view.[5] Evidence-based IP policy-making is, therefore, not always easy.[6] The international dimensions of IP are as complex, or more complex, than the domestic aspects. Because IP protects valuable intangibles, these resources move easily across borders. To address that issue, international treaties set out minimum standards for IP protections. There is tension, however, between harmonization (in the belief that it promotes predictability and, thus, foreign direct investment and international trade) versus flexibility (to eliminate trade barriers, and to ensure local governments are able to develop policies that respond to local needs). National governments on the continent of Africa are increasingly constrained by international IP law when locally tailoring approaches to knowledge governance. It is also important to...

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Licensing Open Government Data

Author: Jyh-An Lee Abstract: Governments around the world create and collect an enormous and wide-ranging amount of data. For various social, political, and economic reasons, open data has become a popular government practice and international movement in recent years. It is estimated that more than 250 national or local governments from around 50 developed and developing countries have launched open government data (OGD) initiatives. Open data policies are widely recognized as a tool to foster government transparency and economic growth. Businesses have also developed innovative applications, products, and services based on OGD. Although OGD is a global movement, it faces a number of unsolved legal hurdles. Among others, it is critically important for participating governments to devise the most appropriate legal means of releasing data, and intellectual property (IP) licensing has been viewed as one of the main obstacles for governments in this regard. Consequently, entrepreneurs may hesitate to use or reuse government data if there is no reliable licensing or clear legal arrangement governing it. This Article focuses on the legal issues associated with OGD licenses. Different government agencies have chosen different licensing terms to manage the release of their data. This study compares current open data licenses and argues that licensing terms reflect policy considerations, which are quite different from those contemplated in business transactions or shared in typical commons communities. This Article investigates the ambiguous legal...

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The American Public Domain and the Courtesy of the Trade in the Nineteenth Century

Author: Robert Spoo Abstract: The chapter explores the founding rules of America’s protectionist copyright law, which openly encouraged the unauthorized reprinting of new foreign works, generated frenzied competition for those free resources, and set in motion a counter-practice of self-restraint among American publishers that came to be called the courtesy of the trade. As a way of regulating destructive competition for unprotected titles, and to give themselves an aura of respectability and fairness, the major publishers adopted trade courtesy, whereby, in its simplest form, the first publisher to announce plans to issue an American edition of an unprotected foreign work acquired informal title to that work — a kind of makeshift copyright grounded on tacit trade agreements and community-based norms. Drawing on the insights of scholars of social norms and common-pool regulation, the chapter offers a detailed account of nineteenth-century courtesy and its regime of entitlements, exceptions, and penalties. Courtesy restored a fragile order to the publishing scene by imitating the main features of copyright law and permitting both publishers and authors to benefit, though inconsistently, from the wholly informal exclusive rights recognized by this self-interested chivalry. Citation: Spoo, Robert E., The American Public Domain and the Courtesy of the Trade in the Nineteenth Century (May 3, 2017). Without Copyrights: Piracy, Publishing, and the Public Domain (New York: Oxford University Press, 2013; paper 2016). Full text on SSRN:...

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The Global Battle Over Copyright Reform: Developing the Rule of Law in the Chinese Business Context

Author: Shruti Rana Abstract: Nations and businesses around the globe have been battling over copyright protection laws, with industrialized nations pressuring developing nations to adopt “Western-style” copyright regimes. These battles are escalating as copyright piracy grows, while developing nations struggle to formulate reforms that will protect their own intellectual property as well as that of industrialized nations. China is at the cutting edge of these debates. Over the last several years, and most recently in 2015, China has released transformative new proposals to reform its copyright laws. This Article—believed to be the first scholarly comparative analysis of China’s reforms—critiques China’s new proposals. More broadly, this Article examines China’s copyright reforms as a case study of the issues involved in developing the rule of law in emerging economies. This Article argues that Western governments and businesses have been misguided in pressuring China to adopt or transplant Western-style copyright laws. Instead, this Article argues that, for China to create a more effective system of copyright protections, China should adopt a more rules-based approach similar to the copyright regimes of Japan and Taiwan. Drawing on comparative law theory and on an analysis of rules-based versus standards-based approaches to legal development and copyright law, this Article analyzes how China can effectively reform its copyright system and enhance public awareness of copyright norms and their functions. To support this argument, this Article conducts a...

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Intellectual Property Channeling for Digital Works

Author: Lucas Osborn Abstract: Market economies are based on free competition, which can include copying. Yet intellectual property protection in the United States prohibits copying in certain circumstances to incentivize innovation and creativity. New breeds of digital works are challenging our historical application of intellectual property law. These include certain categories of software programs as well as digital manufacturing files. The problem is that these new works look deceptively like works from a previous era, and thus courts might languorously treat them as they have older works. This would be a mistake. This Article analyzes these works in terms of existing intellectual property doctrine and constructs a normative framework for channeling the works among the different intellectual property regimes and even away from intellectual property protection altogether. Citation: Osborn, Lucas, Intellectual Property Channeling for Digital Works (April 12, 2017). Cardozo Law Review, Forthcoming. Full Text on SSRN:  Osborn, Lucas, Intellectual Property Channeling for Digital Works (April 12, 2017). Cardozo Law Review, Forthcoming. Available at SSRN:...

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Copyright Law and Digital Piracy: An Econometric Global Cross-National Study

Author: Antoni Terra Abstract: Digital piracy is a worldwide concern. Both very high and very low rates of intellectual property infringement threaten innovation, thus implying that some level of effective copyright regulation is required to incentivize the creation of original works. However, although Article 27 of the Universal Declaration of Human Rights advocates for social access to culture as well as the protection of copyright, many countries do not yet have an economic and legal balance between authors and consumers. This article aims to identify which copyright law measures are more related to low/high digital piracy rates. To address that question, the author presents a picture of how the world of copyright is today. The empirical law and economics methodology used in this paper thus consists of a content analysis of significantly selected copyright law measures that have been more or less broadly implemented, or that have been dismissed by 108 countries in their current national copyright statutes. After processing the resultant database (or coding scheme) with econometric and descriptive statistical tools, the findings suggest that: (1) the legal measures correlated to high digital piracy rates include the sweat of the brow doctrine and secondary liability rules for Internet Service Providers (“ISPs”); (2) the measures most connected to low piracy rates are private copying and fair use provisions; (3) statutes that favor copyright holders are associated with greater rates...

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Defense Against the Dark Arts of Copyright Trolling

Authors: Matthew Sag and Jake Haskell Abstract: In this Article, we offer both a legal and a pragmatic framework for defending against copyright trolls. Lawsuits alleging online copyright infringement by John Doe defendants have accounted for roughly half of all copyright cases filed in the United States over the past three years. In the typical case, the plaintiff’s claims of infringement rely on a poorly substantiated form pleading and are targeted indiscriminately at non-infringers as well as infringers. This practice is a sub-set of the broader problem of opportunistic litigation, but it persists due to certain unique features of copyright law and the technical complexity of Internet technology. The plaintiffs bringing these cases target hundreds or thousands of defendants nationwide and seek quick settlements priced just low enough that it is less expensive for the defendant to pay rather than to defend the claim, regardless of the merits of the claim. We report new empirical data on the continued growth of this form of copyright trolling in the United States. We also undertake a detailed analysis of the legal and factual underpinnings of these cases. Despite their underlying weakness, plaintiffs have exploited information asymmetries, the high cost of federal court litigation, and the extravagant threat of statutory damages for copyright infringement to leverage settlements from the guilty and the innocent alike. We analyze the weaknesses of the typical plaintiff’s...

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Trade Agreements, Patents, and Drug Prices: Continuing the Debate

Authors: Amy Kapczynski, Bhaven N. Sampat and Ken Shadlen Abstract:  The upward-ratcheting of patent protection through trade agreements has generated significant concerns about potential effects on prices of drugs and access to medicines in developing countries. The Trans-Pacific Partnership (TPP) included even more extensive pharmaceutical patent provisions than any before. While President Trump withdrew the US as a signatory to the TPP, the potential for new trade agreements to raise the same set of concerns generated by the TPP remains high. Previous work assessing the TPP argued that new data on pharmaceutical expenditures (and other measures) from countries with recent trade agreements with the U.S. indicated that concerns about pharmaceutical patent protection and drug prices are overblown and it may be time to move on from these debates. Here we argue that the analysis supporting these claims is misleading because it fails to look at the right drugs at the right points in time, overlooks the temporal dimensions of implementation of provisions in previous trade agreements, and ignores the broader context in which trade agreements are negotiated and implemented. Much more empirical work is needed to understand the impact of previous trade agreements, and the effects of stronger patent protections in developing countries on innovation, access, and prices. Some of the crucial analyses may not be possible until the provisions in the agreements take full effect, which could take...

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In the Public Interest: How Kenya Quietly Shifted from Fair Dealing to Fair Use

Author: Victor B. Nzomo Abstract: In 2014, the Supreme Court of Kenya had to determine whether the broadcast rights in free-to-air (FTA) programme-carrying signals were infringed by allowing the re-broadcasting of these signals pursuant to the so-called “must-carry” rule in the Broadcasting Regulations of the Kenya Information and Communication Act. In a unanimous decision, the apex court ruled that the ‘must -carry’ rule fell under the fair dealing provisions of the Kenya Copyright Act despite the fact that the dealing in question did not fit within one of the enumerated allowable purposes. From a strictly statutory perspective, Kenya is a fair dealing country but the Supreme Court’s approach consisted entirely of a fairness analysis identical to one of an open-ended fair use system. This paper argues that the apex court’s interpretation of fair dealing in Kenya is now identical to fair use in the United States and other jurisdictions. The court’s emphasis on the importance of limitations and exceptions to safeguard public interest laid the foundation for a shift away from a fair dealing test toward a single analysis based on fairness of the use of a copyrighted work. Citation: Nzomo, Victor B., In the Public Interest: How Kenya Quietly Shifted from Fair Dealing to Fair Use (December 1, 2016). WIPO-WTO IP Colloquium Research Paper Series 2016. Full paper on SSRN:...

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Mitigating the Regulatory Constraints Imposed by Intellectual Property Rules Under Free Trade Agreements

Carlos Correa South Centre, February 2017 Research Paper #74 IP provisions in FTAs may have implications on a wide range of public policy areas. A vast academic literature has addressed the “flexibilities” available under the TRIPS Agreement and the negative impact of FTAs in relation to access to medicines. For example, the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard to Physical and Mental Health noted that the TRIPS Agreement and FTAs have had an adverse impact on prices and availability of medicines, making it difficult for countries to comply with their obligations to respect, protect and fully implement the right to health. He recommended developing countries and LDCs to review their laws and policies and amend them to make full use of the flexibilities available to them. This paper explores the extent to which this recommendation to use “to the fullest extent possible, remaining public health related flexibilities available” may be effectively implemented in the context of FTAs. The basic question addressed in this paper is whether contracting parties to FTAs can mitigate their adverse effects through interpretation and implementing regulations. Full Paper: https://www.southcentre.int/research-paper-74-february-2017/...

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Copyright Formalities: A Return to Registration?

Author: Dev Saif Gangjee Abstract: Copyright law is an outlier. Unlike patent, trade mark or (with some qualifications) design protection, the recognition and enforcement of proprietary interests is automatic, arising upon creation. It is not conditioned upon the fulfilment of formalities. More specifically, Art 5(2) of the Berne Convention proscribes – to a large extent – the introduction of mandatory formalities. Responding to the invitation to reimagine copyright, this chapter conducts a thought experiment; one which is historically and empirically informed. It considers whether mandatory or strongly incentivised registration would serve the public interest better than automatic copyright. To that end, section 2 defines formalities, and introduces the most common types historically associated with copyright law. The rationales for formalities are then mapped on to distinct public interest outcomes. Section 3 reviews the arguments both for and against the reintroduction of formalities. The concerns underlying article 5(2) of Berne would have to be addressed by any reform proposals. With this in mind, section 4 contains the principal substantive contribution of this chapter. It outlines what a mandatory copyright registration system at the national level might look like, drawing inductively upon existing studies of voluntary copyright registration as well as other IP and land registration systems. Section 5 concludes that, given the option, it would be unreasonable to continue with our present ‘automatic protection’ approach. Registration is worth reconsidering once...

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Reforming Intermediary Liability in the Platform Economy: A European Digital Single Market Strategy

Author: Giancarlo F. Frosio Abstract: Since the enactment of the first safe harbours and liability exemptions for online intermediaries, market conditions have radically changed. Originally, intermediary liability exemptions were introduced to promote an emerging Internet market. Do safe harbours for online intermediaries still serve innovation? Should they be limited or expanded? These critical questions — often tainted by protectionist concerns — define the present intermediary liability conundrum. Apparently, safe harbours still hold, although secondary liability is on the rise. As part of its Digital Single Market Strategy, the European Commission would like to introduce sectorial legislation that would de facto erode liability exemptions for online intermediaries, especially platforms. Under the assumption of closing a “value gap” between rightholders and online platforms allegedly exploiting protected content, the proposal would implement filtering obligations for intermediaries and introduce neighbouring rights for online uses of press publications. Meanwhile, an upcoming revision of the Audio-visual Media Services Directive would ask platforms to put in place measures to protect minors from harmful content and to protect everyone from incitement to hatred. Finally, the EU Digital Single Market Strategy has endorsed voluntary measures as a privileged tool to curb illicit and infringing activities online. This paper would like to contextualize the recent EU reform proposal within a broader move towards turning online intermediaries into Internet police. This narrative builds exclusively upon governmental or content industry assumptions,...

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Looking Above and Beyond the Blunt Expectation: Specified Request As the Recommended Approach to Intermediary Liability in Cyberspace

Author: Krzysztof Garstka Abstract: Following the publication of the Digital Single Market agenda, it became clear that establishing the place of online intermediaries in the regulatory framework for combating illicit content on the Internet remains one of the key challenges for European regulators. This article looks at the landscape of corresponding enforcement strategies within the European Union and unravels two competing conceptual approaches in relation to the role of online intermediaries. The first one, characterised as “blunt expectation” is based on exploiting the intermediaries’ fear of liability for the actions of their users, in order to have the former take unspecified actions towards the infringements, or refrain from conducting their services altogether. The second approach, labelled as “specified request”, is based on requiring the intermediaries to implement specific procedures or elements of infrastructure, with the liability arising not from the infringements of the users, but from the lack of compliance with the stipulated requirements. After comparing the merits and demerits of both approaches, the author puts forward an argument in support of greater reliance on the specified request approach, and elucidates the challenging, yet worthwhile path to its implementation within the EU. Citation: GARSTKA, Krzysztof. Looking above and beyond the blunt expectation: specified request as the recommended approach to intermediary liability in cyberspace. European Journal of Law and Technology, [S.l.], v. 7, n. 3, dec. 2016. ISSN 2042-115X. Full...

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WIPO Journal: Special Issue on Intellectual Property and Development

Thanks to Peter Yu for sending a link to the current issue of the WIPO Journal, which is dedicated to the theme of IP and development. Many of the articles look of interest to readers of the infojustice blog.  The contents are: Five Decades of Intellectual Property and Global Development (Peter K. Yu); Development and International Copyright: A History (Sara Bannerman); Prioritising Human Development in African Intellectual Property Law (J. Janewa OseiTutu); Decolonising Intellectual Property Law in Pursuit of Africa’s Development (Caroline B. Ncube); Drugs, Drugs Everywhere but Just Not for the Poor (Srividhya Ragavan); The Never-ending Story of Access to Medicines (Dhanay M. Cadillo Chandler); Intellectual Property, Climate Change and Development (Dalindyebo Shabalala); Fundamental Rights, Development and Cultural Inclusion: The Marrakesh Treaty in Brazil (Allan Rocha de Souza); Patent as a Development Target? Dilemma of China’s Patent-Indicated Innovation Incentive Strategy (Song Hongsong); Intellectual Property and Development: Patents, Mass Innovation and the Xiaokang Society (Phoebe Li); Fine-tuning the Intellectual Property Approaches to Fostering Open Science: Some Insights from India (Arul George Scaria and Rishika Rangarajan); The Need for a Pluralist Approach to the Link between Intellectual Property and Development: A Pacific Island Case Study (Miranda Forsyth; and The Reform of Educational Exceptions in the UAE Copyright Law to Suit Development Goals (Rami Olwan). The full text of the Journal can be downloaded...

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