Author: Papers

Text and Data Mining Exception in South America: A Way to Foster AI Development in the Region

Posted by | Jul 19, 2021 | , ,

[Matías Jackson Bertón] Abstract: In 2015, authors wondered if Europe was falling behind in the artificial intelligence (AI) race because of the lack of a text and data mining (TDM) exception. What can then be said for South America? Copyright regimes and their interaction with the development of digital technologies in this continent have been overlooked by authors. This paper intends to start filling this gap by mapping the current state of copyright exceptions that serve computational analysis in South America. After reviewing the copyright regimes of the five largest economies of the region (i.e. Argentina, Brazil, Chile, Colombia and Peru), I concluded that they are not prepared for digital research techniques such as text and data mining.

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The Effect of Patent Disclosure Quality on Innovation

Posted by | Jul 19, 2021 |

[Travis Dyer, Stephen Glaeser, Mark H. Lang and Caroline Sprecher] Abstract: The patent system grants inventors temporary monopoly rights in exchange for a public disclosure detailing their innovation. These disclosures are meant to allow others to recreate and build on the patented innovation. We examine how the quality of these disclosures affects follow-on innovation. We use the plausibly exogenous assignment to patent applications of patent examiners who differ in their enforcement of disclosure requirements as a source of variation in disclosure quality. We find that some examiners are significantly more lenient with respect to patent disclosure quality requirements, and that patents granted by these examiners include significantly lower-quality disclosures. These patents generate significantly less follow-on innovation.

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Defending Access to Medicines in Regional Trade Agreements: Lessons From the Regional Comprehensive Economic Partnership – A Qualitative Study of Policy Actors’ Views

Posted by | Jul 16, 2021 | ,

[Belinda Townsend] …The RCEP negotiations were initially framed as focused on the needs of low income countries. Public health concerns emerged however when draft negotiating chapters were leaked online, revealing pressures on countries to agree to intellectual property and investment measures that could exacerbate issues of access to medicines and seeds, and protecting regulatory space for public health. A concerted Asia Pacific civil society campaign emerged in response to these concerns, and in 2019, media and government reporting suggested that several of these measures had been taken off the table, which was subsequently confirmed in the release of the signed text in November 2020.

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An Endless Odyssey? Content Moderation Without General Content Monitoring Obligations

Posted by | Jul 9, 2021 | , ,

[Christina Angelopoulos and Martin Senftleben] Abstract: In line with the E-Commerce Directive and the Directive on Copyright in the Digital Single Market, the proposed Digital Services Act provides explicitly that intermediaries may not be obliged to monitor their service in a general manner in order to detect and prevent the illegal activity of their users. However, a misunderstanding of the difference between monitoring specific content and monitoring FOR specific content is a recurrent theme in the debate on intermediary liability and a central driver of the controversy surrounding it. Rightly understood, a prohibited general monitoring obligation arises whenever content – no matter how specifically it is defined – must be identified among the totality of the content on a platform. The moment platform content must be screened in its entirety, the monitoring obligation acquires an excessive, general nature.

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Public Lies and Public Goods: Ten Lessons From When Patents and Pandemics Meet

Posted by | Jul 8, 2021 | , ,

[Peter Drahos] Abstract: The paper examines three decades of the history of patents and pandemics that begins with the HIV/AIDS pandemic and TRIPS. This history demonstrates that the patent system is itself a huge source of risk when it comes to managing the risks of pandemics. From this history ten core lessons are extracted. The central message of the paper is that developing countries will have to focus on collaborations among themselves with the aim of building a wide base of rich manufacturing experience in the production of medicines and therapies. They can expect no priority of treatment under the present patent-mediated response to pandemics.

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Who is terminating their copyrights? New research and open access datasets from the Author’s Interest Project

Posted by | Jul 6, 2021 | ,

[Joshua Yuvaraj] …This research examines Copyright Office records created each time someone files a notice of termination under §§ 203 or 304 of the Copyright Act. Those sections grant authors and their heirs inalienable rights to end copyright grants and reclaim their rights 35 years after transfer. They were designed to give authors a ‘second bite’ of the cherry, giving some redress in situations like that involving the co-creators of Superman (who sold their rights for just $130 in 1938). We constructed new open access datasets that contain all the termination notices we could locate in the catalog. Our research also analyses who is filing such notices and for what types of work, and how publishers, record companies, and other intermediaries respond when notices are filed against them.

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Compulsory Licensing of Trade Secrets: Ensuring Access to COVID-19 Vaccines via Involuntary Technology Transfer

Posted by | Jun 30, 2021 | ,

[Olga Gurgula and John Hull] Abstract: This paper considers how vaccine technology to meet the challenges of the COVID-19 pandemic can be made available to increase the production of the vaccines. Its primary focus is on trade secrets which are one of the main intellectual property rights protecting the complex manufacturing processes for vaccine production.

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Reconceptualising Copyright Markets: Disseminative Competition as a Key Functional Dimension

Posted by | Jun 3, 2021 |

[Cheryl Foong] Abstract: The notion of ‘markets’ occupies a prominent yet ambiguous position in copyright discourse. When the term is raised, the copyright owner’s market tends to be taken as its implicit meaning, perpetuating an assumption that the market needs to be protected solely to preserve incentives to create. This dominant narrative overshadows an important dimension of copyright markets – disseminative competition, which is characterised by rival disseminators competing for inputs (copyright content) and audiences (copyright consumers).

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If a Machine Could Talk, We Would Not Understand It: Canadian Innovation and the Copyright Act’s TPM Interoperability Framework

Posted by | May 24, 2021 | ,

[Anthony Rosborough] Abstract: This analysis examines the legal implications of technological protection measures (“TPMs”) under Canada’s Copyright Act. Through embedded computing systems and proprietary interfaces, TPMs are being used by original equipment manufacturers (“OEMs”) of agricultural equipment to preclude reverse engineering and follow-on innovation. This has anti-competitive effects on Canada’s “shortline” agricultural equipment industry, which produces add-on or peripheral equipment used with OEM machinery. This requires interoperability between the interfaces, data formats, and physical connectors, which are often the subject of TPM control. Exceptions under the Act have provided little assistance to the shortline industry. The research question posed by this analysis is: how does the Canadian Copyright Act’s protection for TPMs and its interoperability exception impact follow-on innovation in secondary markets?

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The TRIPS Intellectual Property Waiver Proposal: Creating the Right Incentives in Patent Law and Politics to end the COVID-19 Pandemic

Posted by | May 24, 2021 | , , ,

[Siva Thambisetty, Aisling McMahon, Luke McDonagh, Hyo Yoon Kang, and Graham Dutfield] …This paper elucidates the legal issues surrounding the ‘TRIPS waiver’ proposal … We analyse the different intellectual property rights relevant to the proposal – focusing primarily on patent rights and trade secrets – which are most relevant to the present COVID-19 vaccine context. We explain why the existing TRIPS flexibilities around compulsory licensing are incapable of addressing the present pandemic context adequately, both in terms of procedure and legal substance The extent of the current health crisis posed by COVID-19 is as undeniable as the current global response is untenable. Given the ongoing absence of sufficient engagement by the pharmaceutical industry with proposed global mechanisms to share intellectual property rights, data and know-how to address the pandemic, we argue that mandatory mechanisms are needed. The TRIPS waiver is an essential legal instrument in this context for enabling a radical increase in manufacturing capacity, and hence supply, of COVID-19 vaccines, creating a pathway to achieve global equitable access. Click here for more.

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Reversion of Copyright In Europe

Posted by | May 17, 2021 |

[Martin Kretschmer, Ula Furgal, and Elena Cooper] Abstract: Reversion rights became a topical issue in Europe following the adoption of the Directive on Copyright in the Digital Single Market (2019) which introduced a new right of revocation to the EU copyright framework. The right gives effect to a “use-it-or-lose-it” principle, entitling authors and performers to reclaim their works when they are not being exploited. While reversion rights are not a novelty to a number of EU Member States, the current reversion rights landscape is fragmented, with provisions often limited to certain works or agreements. This paper assembles three contributions from a special section of the European Intellectual Property Review (May 2021), in the pre-print version by the CREATe Centre, University of Glasgow.

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Too Small to Matter? On the Copyright Directive’s bias in favour of big right-holders

Posted by | May 2, 2021 | ,

[Martin Husovec and João Quintais] Abstract: Copyright law is about recognising the author’s material and non-material interests and setting the incentives for creativity right. The legislative changes in this area increasingly look as if simple linearity governs the world: what we take away from some, we automatically give away in equal part to others. The idea of redistribution is noticeable in recent legislative developments. Art. 17 of the Copyright in the Digital Single Market Directive (DSM Directive) is the latest policy intervention to prove this point. According to its logic, imposing stricter liability on some online gatekeepers will automatically improve the position and revenues for all right-holders. This chapter explores the flaws in such an approach by highlighting how the excessive focus of Art. 17 on big right-holders neglects and harms smaller creators.

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Not the African Copyright Pirate Is Perverse, But the Situation in Which (S)he Lives-Textbooks for Education, Extraterritorial Human Rights Obligations, and Constitutionalization “From Below” in IP Law

Posted by | May 1, 2021 | , ,

[Klaus Beiter] Abstract: …This Article will demonstrate the significance of extraterritorial state obligations (ETOs) for IP law. It focuses on the issue of how the right to education under international huan rights law prescribes requirements that international copyright law must comply with to facilitate access to textbooks in schools and universities. Drawing on the expert Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights of 2011, and applying the well-known tripartite typology of state obligations to respect, protect, and fulfill human rights, the ETOs concept will be introduced and twenty typical ETOs under the right to education in the international copyright context that safeguard access to printed textbooks will be identified. A final central aim of the Article will be to explain how exactly, within international law as a unified system, ETOs can lead to a “constitutionalization” of IP law. Although the discussion relates to issues of accessibility in developing countries more generally, the dire situation of access to textbooks in education in Africa strongly motivated this research.

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Ensuring Text and Data Mining: Remaining Issues With the EU Copyright Exceptions and Possible Ways Out

Posted by | Apr 26, 2021 | ,

[Rossana Ducato and Alain Strowel] Abstract… The importance of TDM has been understood by the European legislator, which has introduced two specifically tailored exceptions in the Copyright in the Digital Single Market Directive. After a critical analysis of the new provisions, the paper argues that they still present several flaws that risk to stifle AI developments in Europe. Thus, the contribution outlines an interpretative framework, based on the analysis of the infringement test, to rethink the rights of reproduction and extraction in line with the economic rationale of copyright and the database right.

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World trade organization’s export-oriented compulsory licensing mechanism: Foreseen policy concern for Africa to mitigate the COVID-19 pandemic

Posted by | Apr 26, 2021 | , , ,

[Muhammad Z Abbas] Abstract: Africa has a history of grappling with outbreaks and high prevalence of disease. It currently confronts COVID-19 which is escalating because of local community transmission of the disease. Poorly resourced health systems in Africa are ill-prepared for the surging number of COVID-19 cases. This paper emphasizes that in the current battle against COVID-19, policymakers should not lose sight of future policy challenges.

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TRIPS Meets Big Data

Posted by | Apr 12, 2021 | , ,

[Daniel J. Gervais] Abstract: The WTO has begun its work on the interface between Big Data and trade law, including the TRIPS Agreement. After defining Big Data, this paper explores how TRIPS and especially the copyright section might apply. It also discusses briefly the EU database right and then considers how an exception for Text and Data Mining (TDM) might be analyzed under TRIPS and the three-step test.

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Debunking the Fair Use vs. Fair Dealing Myth: Have We Had Fair Use All Along?

Posted by | Mar 30, 2021 | , ,

[Ariel Katz] Abstract: According to conventional wisdom, a fundamental difference exists between the American fair use doctrine and the Canadian fair dealing doctrine (or that of other Commonwealth countries): while American fair use can apply potentially to any purpose, fair dealing could only apply to the explicit purposes enumerated in the statute. Accordingly, the argument goes, fair dealing cannot apply to dealings for unenumerated purposes no matter how fair they might be. This conventional wisdom is false.

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Taking Access Seriously

Posted by | Feb 21, 2021 | , ,

[BJ Ard] Abstract: Copyright is conventionally understood as serving the dual purposes of providing incentives for the creation of new works and access to the resulting works. In most analysis of copyright, however, creation takes priority. When access is considered, it is often in the context of how access relates back to the creation of new works. Largely missing is an account of the value of access on its own terms. So what is the place of access in copyright law and policy? A set of cases dealing with copyright owners’ attempts to enjoin the markets created by new playback and distribution technologies is instructive.

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THE CASE FOR INTEGRATING COPYRIGHT LAW WITH THE CONSTITUTIONAL RIGHT TO EDUCATION IN NIGERIA AND DEVELOPING COUNTRIES.

Posted by | Jan 28, 2021 | ,

[Samuel W. Ugwumba] Abstract: The commitment to ensure access to education, particularly in developing countries, is a developmental imperative. Lack of education is life-threatening and, if there was any doubt, this is clear from the numerous studies that show a positive correlation between education and other development components. The sad reality, however, is that available data shows a growing crisis of access to education in developing countries exacerbated by socio-economic inequalities and legal obstacles. Particularly, the regime of copyright law, as a market institution, poses challenges to the achievement of education, a non-market good and a developmental imperative. Yet, there is very little analysis in many DCs on the interface between copyright and access to education, preferring instead to see the regime of copyright on a narrow legalistic normative lens that privileges wealth-maximization and undermines the value of access to education.

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Licensing Life-Saving Drugs for Developing Countries: Evidence from the Medicines Patent Pool

Posted by | Jan 6, 2021 |

[Alberto Galasso, Mark Schankerman] Abstract: We study the effects of a patent pool on the licensing and adoption of life-saving drugs in low- and middle-income countries. Using data on licensing and sales for HIV, hepatitis C and tuberculosis drugs, we show that there is an immediate and large increase in licensing by generic firms when a patent is included in the Medicines Patent Pool (MPP). This finding is robust to identification strategies to deal with endogeneity of MPP patents and countries. The impact of the MPP is especially large for small, non-Sub-Saharan countries. The impact on actual entry and sales, however, is much smaller than on licensing, which is due to geographic bundling of licenses by the MPP. More broadly, the paper highlights the potential of pools in promoting technology diffusion of biomedical innovation. Click here for more.

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