Author: Papers

An International Instrument on Copyright and Educational Uses: Regulatory Models and Lessons

Posted by | Jul 14, 2023 | ,

[Faith O. Majekolagbe and Giulia Priora] Abstract: There has been a renewed interest in the adoption of an international instrument on copyright and educational uses at the World Intellectual Property Organization since the COVID-19 pandemic which necessitated an unprecedented large-scale switch to digital education in many countries and brought to the fore the need to address copyright barriers to educational activities in physical and digital settings at the international level. This chapter primarily considers various legal models for copyright limitations and exceptions, specifically the fair use, fair dealing, and exhaustive list models, that could be explored and/or adopted in developing an appropriate international instrument on copyright limitations and exceptions for educational uses. It then draws lessons from the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled to buttress the need for an international instrument on educational uses of copyrighted works.

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Impacts of LDC Graduation on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in Cambodia, Djibouti, Senegal and Zambia

Posted by | Jun 20, 2023 | ,

[Nirmalya Syam and Shirin Syed] Abstract: Least developed countries (LDCs) benefit from specific flexibilities under the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), including an extended transition period for implementation of the agreement. These flexibilities cease to apply when countries graduate from the LDC category. Cambodia, Djibouti, Senegal and Zambia are among the countries that have recently started the graduation process, which consists of a series of stages over several years and involves analysis of quantitative and qualitative information, including the expected impacts of graduation. In that context, this study analyses the policy and developmental implications for these countries of no longer benefitting from the LDC-specific provisions of the TRIPS Agreement.

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The Creative Commons Solution: Protecting Copyright in Short-Form Videos on Social Media Platforms

Posted by | Jun 19, 2023 | ,

[Cheng-chi (Kirin) Chang] Abstract: The rapid development of short-form video social platforms, such as TikTok, has created huge commercial value but also highlights serious copyright infringement problems. Traditional “all rights reserved” protection models may not be adequate in this evolving creative landscape. The paper proposes the use of Creative Commons licenses as a solution to address the imbalance of rights between platforms and users.

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Global Inequities In Access to COVID-19 Health Products and Technologies: A Political Economy Analysis

Posted by | Jun 19, 2023 | , ,

[Deborah Gleeson, Belinda Townsend, Brigitte F. Tenni, and Tarryn Phillips] Abstract: This paper presents a political economy analysis of global inequities in access to COVID-19 vaccines, treatments, and diagnostic tests. We adapt a conceptual model used for analysing the political economy of global extraction and health to examine the politico-economic factors affecting access to COVID-19 health products and technologies in four interconnected layers: the social, political, and historical context; politics, institutions, and policies; pathways to ill-health; and health consequences. Our analysis finds that battles over access to COVID-19 products occur in a profoundly unequal playing field, and that efforts to improve access that do not shift the fundamental power imbalances are bound to fail.

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Geographic Isolation, Trade Secrecy, and Innovation

Posted by | Jun 19, 2023 |

[Andrea Contigiani and Marco Testoni] Abstract: This paper studies the impact of geographic isolation on innovation. Geographically isolated regions have lower access to distant knowledge and, thus, may be less effective in producing innovation. In addition, this effect may be moderated by frictions in the labor market, such as trade secrecy protection, that hinder access to local knowledge. To explore this argument, we build a comprehensive dataset of US CBSAs for the period 1971–2014, combining data on travel time, trade secrecy protection, and patenting activity. We find that geographic isolation has a substantial negative impact on innovation quantity and quality. This relationship is at least partially explained by lower access to existing knowledge, as geographic isolation hinders collaboration and, to some extent, mobility. The negative effect is especially pronounced in regions characterized by strong trade secrecy protection. Overall, the evidence suggests that the combination of geographic isolation and trade secrecy protection is detrimental to the innovation performance of regions.

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Ensuring Access to New Treatments for Ebola Virus Disease

Posted by | Jun 15, 2023 |

[Médecins Sans Frontières Access to Medicines Campaign] … Although the approval of these products was a great achievement, the process of ensuring that people who need them can access them is at a standstill. As crucial contributors to the R&D of these treatments, survivors, affected countries and NGOs should have a say in this process. However, we see that decisions related to access and affordability are currently left only to the private corporations holding legal rights and regulatory data, and to the goodwill of these corporations and national governments.

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Generative AI and Author Remuneration

Posted by | Jun 14, 2023 | , , ,

[Martin Senftleben] Abstract… The rights reservation option following from the regulation of text and data mining in the EU (Article 4 of the Directive on Copyright in the Digital Single Market) could serve as a basis for a remuneration system focusing on the use of human creations for AI training purposes. Considering legal and practical difficulties arising from this approach, however, it is preferable to follow an alternative path and introduce a levy system that imposes a general payment obligation on providers of generative AI systems.

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Anticompetitive Patent Strategies by Pharmaceutical Companies

Posted by | May 5, 2023 | ,

[Olga Gurgula] Abstract: Pharmaceutical companies have been increasingly exploiting the patent system to delay or even block generic competition. Some of these practices, such as ‘pay-for-delay’ agreements, have attracted the attention of competition authorities. However, other practices remain outside of competition authorities’ investigative activities in most jurisdictions.

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On the Appeal of Drug Patent Challenges

Posted by | Apr 24, 2023 | ,

[Charles Duan] Abstract: … In this Article, I review the universe of administrative challenges on drug patents that have proceeded through appeal to the Federal Circuit. I find that a large fraction of patents challenged this way are deemed unpatentable at both the agency and appellate levels, and that administrative cancellation of drug patents correlates closely with subsequent generic drug competition and reduced drug prices. The data suggests that these effects are not due to bias against patents, but rather because of the expertise of administrative adjudicators and the remarkably low quality of the drug patents challenged. Indeed, I find that nuanced aspects of these administrative proceedings, particularly at the appellate level, in fact are biased in the opposite direction — against patent challengers. These findings suggest that inter partes review and other administrative challenge proceedings likely serve an important purpose for lowering the costs of medicines, and those proceedings could potentially be improved.

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Science Held Hostage: How Pharma Is Using mRNA Vaccine Contracts With Government to Delay Future Innovation

Posted by | Apr 20, 2023 | , ,

[Emily Bass] Clinical trials that are crucial to future pandemic prevention and current responses to SARS CoV-2 are being delayed by pharmaceutical companies. These companies are able to use government contracts specifying when, where and how current vaccines owned by goverments can be used to delay and defer access to these vaccines for research. Current SARS CoV-2 vaccines are a vital part of research for next-generation products such as nasal vaccines and pan-coronavirus vaccines. Nextgeneration candidates need to be tested in animals who have been vaccinated with presently available vaccines to evaluated safety and effectiveness in the context of prior immunization. However, for over two years, the terms of government contracts with industry have had the inadvertent effect of delaying sometimes effectively blocking access to these products for research purposes. Over the course of a six-month research effort, PrEP4All spoke with US government agencies, research groups, private philanthropy and industry to better understand the causes and consequences of this challenge.

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The Publisher Playbook: A Brief History of the Publishing Industry’s Obstruction of the Library Mission

Posted by | Mar 15, 2023 |

[Kyle Courtney and Juliya Ziskina] Abstract: Libraries have continuously evolved their ability to provide access to collections in innovative ways. Many of these advancements in access, however, were not achieved without overcoming serious resistance and obstruction from the rightsholder and publishing industry. The struggle to maintain the library’s access-based mission and serve the public interest began as early as the late 1800s and continues through today. We call these tactics the “publishers’ playbook.”

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Right to Research and Copyright Law in Kenya: Text and Data Mining

Posted by | Mar 9, 2023 | , , , , ,

[Chebet Koros, Joshua Kitili, Cynthia Nzuki and Natasha Karanja] …The Strathmore University Centre for Intellectual Property and Information Technology Law carried out a study to determine the relationship between Kenya’s technology and copyright legal framework that affect the use of TDM research. It had four specific targets: to determine if Kenya’s technology policy promotes technology, learning, and research; to understand the prospects and plans for enabling a legal environment for research and development of technology; to assess the role of copyright law in enabling TDM research, and finally to provide recommendations for national, regional, and international copyright policies that enable TDM research. This policy brief is a summary of that study with specific policy recommendations resulting from the study.

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Effect of an Open Patent Pool Strategy on Technology Innovation in Terms of Creating Shared Value

Posted by | Mar 7, 2023 | ,

[Deuksin Kwon, Ha Young Lee, Joon Hyung Cho, and So Young Sohn] Abstract: In open patent pools (OPPs), members share their patents to each other. What gains do they expect by sharing patents? In this study, we analyze the effects of an OPP strategy on technological performance in terms of creating shared value (CSV). A panel regression was performed to compare the technological performance of firms in the open invention network (OIN), which is a Linux industry OPP, to those of non-OIN firms using their patent data. Our results demonstrate that the leading groups in the OIN achieved innovation by having more patent applications, forward citations, and collaborative activities than non-participants. Furthermore, OIN firms play a more significant role in promoting knowledge spillovers than non-participants. We demonstrate the positive effects of an OPP strategy on innovation by empirically measuring the technological performance of CSV strategies. Our findings provide insights for institutions that consider implementing an OPP strategy for innovation, including other types of open innovation.

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The Hidden Cost of University Patents

Posted by | Feb 5, 2023 |

[C.J. Ryan, W. Michael Schuster, and Brian L. Frye] Abstract: Universities are encouraged to undertake research through grants from government agencies, foundations, and other organizations. The Bayh-Dole Act reinforces this incentive structure by allowing universities to take ownership of the resultant patents. Included in these rights is the ability to generate income by licensing patents and bringing patent infringement lawsuits. Undoubtedly, exercising these rights to financially benefit the university is economically rational. But might such actions also impose a cost on the public despite the fact that these very patents arose from public research subsidies?

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Open Educational Resources through the European Lens: Pedagogical Opportunities and Copyright Constraints

Posted by | Jan 31, 2023 | ,

[Giulia Priora and Giovanna Carloni] Abstract: The adoption of Open Educational Resources (OERs) in schools and universities is a phenomenon on the rise also in Europe. Increasingly relying on digital, open, freely adaptable materials that are specifically designed for educational purposes is not only a response to the disruptions brought by the Covid-19 pandemic, but a consistent policy step towards a more inclusive, diverse, and quality education in the EU. The article examines the potential and constraints of OERs from both a pedagogical and legal perspective.

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Reconceptualizing Open Access to Theses and Dissertations

Posted by | Jan 23, 2023 | ,

[Orit Fischman Afori and Dalit Ken-Dror Feldman] … The modern perception of TD has generated a call for their greater accessibility, as part of the Open Science movement. Nevertheless, in many countries around the world TD are not published in an open access format. While the normative basis for open access approach to publicly funded academic research is extensively discussed in the literature, there is a lack of legal and normative discussion concerning the special case of TD. The present study aims at filling this gap. We argue that the essence of TD as unique outputs of academic research merits a special stance compelling the publication of these studies in open access format, subject to certain exceptions.

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Trade Secrets in Biologic Medicine: The Boundary with Patents

Posted by | Jan 23, 2023 | ,

[Robin Feldman] Abstract: … There is a dearth of legal literature on the topic of trade secrets in the biologic space and almost nothing regarding how trade secrets interact with the patent system in that domain. These scientific and legal areas are sufficiently complex that even the most intrepid scholars fear to tread. This article explains in detailed and accessible language how the systems are working together to the detriment of society. To address the problem, this article argues that a company receiving a patent on a drug product should be required to disclose the full range of trade secrets necessary to make that drug.

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The Right to Repair, Competition, and Intellectual Property

Posted by | Jan 13, 2023 |

[Michael Carrier] Abstract: Manufacturers have made it difficult for consumers to repair their products. And they have justified their restrictions in large part by claiming the need to protect their intellectual property (IP). This essay explains how justifications based on IP–in particular, copyrights, design patents, trademarks, and trade secrets–are not persuasive.

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Mechanical Licenses for Video Games

Posted by | Jan 9, 2023 |

[Lukas Ruthes Gonçalves] Abstract: Mechanical licenses are a scheme used in the music industry to not only allow publishers and songwriters to be compensated for their work, but also to allow this important cultural product to be better distributed in society and not get lost in time. Video games have accrued great importance culturally, but are at an increasingly greater risk of vanishing, due to being locked into a certain hardware. Allowing fans and other creators to utilize mechanical licenses to remake their favorite video games would help preservation efforts and serve as a reliable income stream for its original publisher.

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