Author: Papers

Is the U.S. Fair Use Doctrine Compatible with Berne and TRIPS Obligations?

Posted by | Aug 30, 2018 |

[Pamela Samuelson and Kathryn Hashimoto] Abstract: The compatibility of the U.S. fair use doctrine with international treaty norms has been questioned many times over the years by European and even American commentators. Does the fair use limitation on copyright’s exclusive rights comport with the “three-step test” that regulates the permissible scope of exceptions in national copyright laws under Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works and in Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)?

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Creative Markets and Copyright in the Fourth Industrial Era: Reconfiguring the Public Benefit for a Digital Trade Economy

Posted by | Aug 22, 2018 |

[Ruth Okediji] Abstract:  A rapid succession of technological advances – big data, robotics, machine learning, and artificial intelligence – is steadily changing how firms engage in productive activity, how consumers interact, and how knowledge goods are acquired, shared, and governed. The rise of big data and the increasingly widespread adoption of artificial intelligence across many industries have complicated our understanding of the values of twentieth-century intellectual property rules. If anything, the expected social costs (such as privacy) of new technology have already intensified debates – both global and national in scope – about the nature of rules that best foster innovation, facilitate access to public goods, and enable economic development.

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Behind the Scenes of Online Copyright Enforcement: Empirical Evidence on Notice & Takedown

Posted by | Aug 13, 2018 | , ,

[Sharon Bar-Ziv and Niva Elkin-Koren] Abstract: Copyright enforcement was one of the early challenges to the rule of law on the internet and has shaped its development since the early 1990s. The Notice and Takedown (N&TD) regime, enacted in the Digital Millennium Copyright Act, offered online intermediaries immunity from liability in exchange for removing allegedly infringing materials upon receiving notice from rights holders. The unequivocal power of rights holders to request removal and the strong incentives for online intermediaries to remove content upon receiving a removal request have turned the N&TD regime into a robust clean-up mechanism for removing any unwarranted content. The N&TD procedure applies to private facilities, makes use of proprietary software, and is administered by private companies. This enforcement procedure is nontransparent and lacks sufficient legal or public oversight. Unlike copyright enforcement in court, where decisions are made public, we know very little about the actual implementation of the N&TD regime: Which players make use of the system? Who is targeted? What materials get removed and why? How effective is the removal of infringing materials, and does it comply with copyright law?

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EU Copyright Law and the Cloud: VCAST and the Intersection of Private Copying and Communication to the Public

Posted by | Aug 2, 2018 | ,

[João Pedro Quintais and Tito Rendas] Abstract: This article examines the applicability of the private copying exception to cloud services against the backdrop of the judgment of the Court of Justice of the European Union (CJEU) and the Opinion of Advocate General (AG) Szpunar in Case C-265/16, VCAST. The case raises the question of whether the exception protects services of an online platform allowing users to store copies of free-to-air TV programmes in private cloud storage spaces. The AG’s proposed answer was to consider that cloud copying could generally be covered by the exception, but the specific service of VCAST could not. The CJEU focused on VCAST’s service only, largely following AG Szpunar’s conclusion.

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Overpatented, Overpriced: How Excessive Pharmaceutical Patenting is Extending Monopolies and Driving up Drug Prices

Posted by | Aug 2, 2018 |

[I-MAK] This report analyzes the twelve best selling drugs in the United States and reveals that drugmakers file hundreds of patent applications – the vast majority of which are granted – to extend their monopolies far beyond the twenty years of protection intended under U.S. patent law. These patents are used by drugmakers for the purpose of forestalling generic competition while continuing to increase the price of these drugs.

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Global Online Piracy Study

Posted by | Aug 1, 2018 | ,

[University of Amsterdam Institute for Information Law (IViR)] This report deals with the acquisition and consumption of music, films, series, books and games through the various legal and illegal channels that exist nowadays, in a set of 13 countries in Europe (France, Germany, the Netherlands, Poland, Spain, Sweden), the Americas (Brazil, Canada) and Asia (Hong Kong, Indonesia, Japan, Thailand). The illegal channels studied are downloading and streaming from illegal sources (including via dedicated technical devices), and streamripping.

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Copyright User Rights and Remedies: An Access to Justice Perspective

Posted by | Jul 30, 2018 | ,

[Pascale Chapdelaine] Abstract: In contemporary copyright law, there is an ongoing debate around the nature and scope of the rights users should have to copyright works, exacerbated by ongoing technological developments. Within that debate, this article queries the value of looking at the remedies users may have against copyright holders restricting their legitimate uses of works, as a means to further elucidate the nature and scope of user rights. While there is some value in looking at remedies to situate copyright user rights, an access to justice perspective to rights and remedies suggests that such approach may be too limiting with respect to the position of potential claimants in a legal system.

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Intellectual Property and Digital Trade in the Age of Artificial Intelligence and Big Data

Posted by | Jul 26, 2018 |

CEIPI/ICTSD Publications Series, Issue 5: This new issue … edited by Xavier Seuba, Christophe Geiger and Julien Pénin, elaborates on changes in modes of innovation, production and commercialisation of innovation, which are central in current discussions and relate closely to intellectual property law and competition. The chapters of this volume feed the debate, identify the central aspects and may be instrumental at drafting a research agenda.

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Permitted Uses in Copyright Law – Is There Need for an International Instrument?

Posted by | Jul 16, 2018 | ,

[Reto Hilty and Valentina Moscon] Abstract: As a follow-up project to the “Declaration on a Balanced Interpretation of the Three-Step Test” (2008), the Max Planck Institute for Innovation and Competition has coordinated an international group of world-renowned copyright experts to produce a legal instrument (possibly in the form of an international agreement) containing a nucleus of indispensable copyright-permitted uses that States should be obliged to implement in their legislations. With the purpose of counterbalancing the current international trend in copyright law, characterised by its “minimal protection approach”, concrete provisions and extended explanatory notes are provided to foster a “minimal limitation approach”.

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The Drug Debate: Data Exclusivity is the New Way to Delay Generics

Posted by | Jun 28, 2018 |

[Srividhya Ragavan] Abstract: The article discusses the protection regime for clinical trial data internationally and outlines the applicable protection regime. In doing so, this article outlines how the data exclusivity regime can operate in parallel with the patent regime to add a layer of protection for the data. Such protection operates at a regulatory level to delay the entry of generic medications. Internationally, the data exclusivity regime, which has become an important contemporary tool in trade negotiations with poorer nations, works to detrimentally affect access to medication.

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From Lab to Commons: Shifting to a Public Interest Biomedical System

Posted by | Jun 24, 2018 | ,

[Sophie Bloemen and David Hammerstein] … a commons approach in biomedical research & development (R&D) can help pull us out of the current crisis of over-diagnosis, over-prescription, low innovation, secrecy and sky-rocketing costs for both patients and health systems. While not exhaustive in our analysis of the many factors affecting biomedical innovation and public health, we propose entry points in the form of policies with the power to transition society away from the current proprietary, centralised and extractive model. In a second step, we put forward a vision for future initiatives in line with commons principles, where the EU should be investing for long-term benefit.

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Projected Savings Through Public Health Voluntary Licences of HIV Drugs Negotiated By The Medicines Patent Pool

Posted by | Jun 21, 2018 | , ,

[Sandeep Juneja, Aastha Gupta, Suerie Moon, and Stephen Resch] Abstract: … While robust data on the savings generated by MPP and other major global public health initiatives is important, it is also difficult to quantify. In this study, we estimate the savings generated by licences negotiated by the MPP for ARV medicines to treat HIV/AIDS in LMICs for the period 2010–2028 and generate a cost-benefit ratio–based on people living with HIV (PLHIVs) in any new countries which gain access to an ARV due to MPP licences and the price differential between originator’s tiered price and generics price, within the period where that ARV is patented.

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Internet Shutdown Stories

Posted by | Jun 18, 2018 |

[CIS-India] Aside from the waves of innovation that the digital revolution brought with it, the ever increasing pervasiveness of the internet has had a tremendous impact on empowerment and freedoms in society. We are seeing unprecedented levels of access to information, along with ademocratization of the means of creation, production and dissemination of information to anyone with an internet connection. … Simultaneously, however, we are seeing Indian states discover and experiment with their power to clamp down on these new modes of communication for a variety of reasons, ranging from the ill-intentioned to the ill-informed. …This book seeks to give a glimpse into the lives of those directly affected by these internet shutdown experiments. From Jammu and Kashmir to Telangana, from Gujarat to Nagaland, we have collected 30 stories from across the country for an up-close look at how the everyday lives of common citizens have been impacted by internet shutdowns and website blocks.

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Judicially Developed Patent Law and Expropriation Under Investor-State Dispute Settlement

Posted by | Jun 18, 2018 | ,

[Tsai-fang Chen] Abstract: Eli Lilly v. Canada is the first international investment arbitration case that renders final award that deals with patents under the international investment regime. This case is, therefore, critical in understanding the development of protecting patents under investment protection and its impact on the domestic patent regimes. Patents can be object of direct expropriation or that of indirect expropriation. As demonstrated in Eli Lilly v. Canada, a new frontier in claiming expropriation of patents is the invalidation of the patent by courts.

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“This Video is Unavailable”: Analyzing Copyright Takedown of User-Generated Content on YouTube

Posted by | Jun 13, 2018 | ,

[Kristofer Erickson and Martin Kretschmer] Abstract: What factors lead a copyright owner to request removal of potentially infringing user-generated content? So-called “notice-and-takedown” measures are provided in the United States under Section 512 of the U.S. Copyright Act (as amended by the Digital Millennium Copyright Act 1998) and enabled in the European Union under the Directive on Electronic Commerce (2000/31/EC). While the combination of limiting liability (“safe harbor”) and notice-and-takedown procedures was originally conceived as a means of balancing innovation with the interests of rightholders, there has been limited empirical study regarding their effects. This research investigates, for the first time, the factors that motivate takedown of user-generated content by copyright owners.

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Patent Policy and American Innovation after eBay: An Empirical Examination

Posted by | Jun 11, 2018 |

[Filippo Mezzanotti and Timothy Simcoe] Abstract: The 2006 Supreme Court ruling in eBay vs. MercExchange marked a sea change in U.S. patent policy. The eBay decision removed the presumption of injunctive relief. Subsequent legal and policy changes reduced the costs of challenging patent validity and narrowed the scope of patentable subject matter. Proponents of these changes argue that they have made the U.S. patent system more equitable, particularly for sectors such as information technology, where patent ownership is fragmented and innovation highly cumulative. Opponents suggest the same reforms have weakened intellectual property rights and curtailed innovation. After reviewing the legal background and relevant economic theory, we examine patenting, R&D spending, venture capital investment and productivity growth in the wake of the eBay decision. Overall, we find no evidence that changes in patent policy have harmed the American innovation system.

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The NAFTA Negotiations — And Canada’s Priority Watch List Designation: It’s All About the Leverage

Posted by | Jun 8, 2018 | , ,

[Hugh Stephens] Abstract: Negotiating tactics can often appear harsh, but when the United States Trade Representative (USTR) placed Canada on its Priority Watch List (PWL), the move went beyond the standard give-and-take of renegotiating the North American Free Trade Agreement. Canada – a nation that believes in the rule of law – joins China, Algeria, Kuwait and Venezuela, to name just a few, on the PWL list for its alleged “worst” record in intellectual property standards. Granted, Canada has room for improvement in this area, but for the USTR’s annual Special 301 report to place it on the PWL is hardly credible. It is no coincidence that Canada, the only G7 country – and virtually the only western country – to make either the PWL and the USTR’s lesser Watch List (WL), is also in the midst of renegotiating NAFTA with the United States and Mexico.

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Fair or Free Use of Copyrighted Materials in Education and Research and the Limit of Such Use

Posted by | May 16, 2018 | , ,

[Muhammad Masum Billah and Saleh Albarashdi] The concept of fair use, fair dealing, or free use of copyrighted works for education and research is incorporated in copyright laws around the world. This is to strike a balance between the private interests of copyright holders and the public interests of students and researchers to use the copyrighted materials in furthering their knowledge. While fair and free use of copyrighted materials for the purpose of study and research is favored and permitted under copyright laws almost everywhere in the world, the limit of such use is not clearly defined in these laws.

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Pharmaceutical Patent Grants in India: How Our Safeguards Against Evergreening Have Failed, and Why the System Must Be Reformed

Posted by | Apr 27, 2018 |

[Feroz Ali, Sudarsan Rajagopal, Venkata S. Raman & Roshan John] This report identifies pharmaceutical drug patents granted in likely contravention of anti-evergreening provisions under section 3 of the Indian Patents Act, from a cohort of 2293 patents granted between 2009 and 2016. An estimate of the rate at which the Indian Patent Office (IPO) erroneously grants such patents, as well as the rationale for grants were arrived at by analysing the prosecution history of some grants and the claim language of all granted patents.

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