Papers

Papers

The Same Problem, Different Outcome: Online Copyright Infringement and Intermediaries’ Liability Under the US and the EU Law

[Lia Shikhiashvili] Abstract: ... Recently, the European Union has adopted a new Copyright Directive, which, in article 17 (ex-article 13) indirectly introduces filtering and monitoring obligations to online platforms that allow users to upload content. It creates the “de facto strict liability regime” for internet intermediaries to root out copyright-infringing content. In contrast with this approach, in the United States internet intermediaries still benefit from the legislative immunities that exclude them from copyright-infringement liability uploaded by their users. This article compares the new European Union directive with the United States approach and shows that these differences might create uncertainties in the digital marketplace. This article also reviews potential consequences of the article 17 and demonstrates the need of harmonized secondary liability regime to Internet Service Providers at European level, without sacrificing safe harbor provisions. The article proposes the adoption of “fair use doctrine” and “fair remuneration” provisions as an effective and alternative tool to protect the rights of all players in the digital scene and simultaneously tackle the so-called “value gap” problem.

Global Drug Diffusion and Innovation with a Patent Pool: The Case of HIV Drug Cocktails

[Lucy Xiaolu Wang] Abstract: ...I study the impact of the first joint licensing platform for drug bundling (the Medicines Patent Pool) on global drug diffusion and innovation. The pool allows generic firms worldwide to sublicense drug bundles cheaply and conveniently for sales in a set of developing countries. I construct a novel dataset from licensing contracts, public procurement, clinical trials, and drug approvals. Using difference-in-differences methods, I find robust evidence that the pool leads to a substantial increase in generic supply of drugs purchased. In addition, the branded-drug makers and other entities, such as public institutions, respond to the pool with higher R&D inputs as measured by clinical trials. The R&D input increase is accompanied by increases in generic drug product approvals. Finally, I estimate a structural model to quantify welfare gains and simulate counterfactuals. The total benefit far to consumers and firms exceeds the associated costs.

Mainstreaming or Dilution? Intellectual Property and Development in WIPO

[Nirmalya Syam] In 2007 Member States of the World Intellectual Property Organization (WIPO) unanimously adopted a set of 45 recommendations which constitute the WIPO Development Agenda. Developing countries sought to give new direction to WIPO through the Development Agenda, away from the pursuit of facilitating and strengthening protection, acquisition and enforcement of intellectual property (IP) rights as an end in itself towards an approach that would be sensitive to the impact of IP on development, both in terms of opportunities as well as costs.

Patents, Trade and Medicines: Past, Present and Future

[Kenneth Shadlen, Bhaven Sampat and Amy Kapczynski] Abstract ... We draw attention to the conceptual and methodological challenges of assessing the effects of patent provisions in trade agreements on prices and access to drugs, with particular emphasis on the importance of timing. Depending on when countries began allowing drugs to be patented, TRIPS-Plus provisions have different effects; and when pharmaceutical patenting has been in place for more countries for more time, the effects of TRIPS-Plus provisions will change again.

Copyright, and Photographs or Videos of Public Art, in South Africa: An Imperfect Picture

[Bram Van Wiele] Abstract: The rise of digital photography and videography has made the creation, sharing and commercialisation of high-quality photographs and videos more accessible, in terms of both cost and skills required. This thematic report examines the impact on copyright infringement of the increase in photographs and videos containing public art. It then analyses the applicability, for such photographs and videos, of the general exceptions for protection of artistic works in South Africa’s Copyright Act 98 of 1978.

Product Patents and Access to Innovative Medicines in a Post TRIPS Era

[Jayashree Watal and Rong DAI] This paper examines access to new and innovative pharmaceuticals in a post-TRIPS era. The WTO’s TRIPS Agreement (TRIPS) makes it obligatory for WTO members – except least-developed country members (LDCs) - to provide pharmaceutical product patents with a 20-year protection term. Developing country members, other than LDCs, were meant to be compliant with this provision of TRIPS by 2005. Access to medicines generally includes two distinct components, viz. availability and affordability. This study investigates these two sub-components of access to medicines and poses two questions in this context: (1) How does the introduction of product patents in pharmaceuticals affect the likelihood of pharmaceutical firms making available new and innovative medicines in those markets? (2) For launched new and innovative medicines, how much do firms adjust their prices to local income levels in order to make these products affordable?

What happens when books enter the public domain? Testing copyright’s underuse hypothesis across Australia, New Zealand, the United States and Canada

[Rebecca Giblin] Abstract: The United States (‘US’) extended most copyright terms by 20 years in 1998, and has since exported that extension via ‘free trade’ agreements to countries including Australia and Canada. A key justification for the longer term was the claim that exclusive rights are necessary to encourage publishers to invest in making older works available — and that, unless such rights were granted, they would go underused. This study empirically tests this ‘underuse hypothesis’ by investigating the relative availability of ebooks to public libraries across Australia, New Zealand, the US and Canada.

Exploring the Interfaces Between Big Data and Intellectual Property Law

[Daniel Gervais] Abstract: This article reviews the application of several IP rights (copyright, patent, sui generis database right, data exclusivity and trade secret) to Big Data. Beyond the protection of software used to collect and process Big Data corpora, copyright’s traditional role is challenged by the relatively unstructured nature of the non-relational (noSQL) databases typical of Big Data corpora. This also impacts the application of the EU sui generis right in databases. Misappropriation (tort-based) or anti-parasitic behaviour protection might apply, where available, to data generated by AI systems that has high but short-lived value. Copyright in material contained in Big Data corpora must also be considered.

Scoping Study on Access to Copyright Protected Works by Persons With Disabilities

[Blake E. Reid and Caroline B. Ncube] Abstract: Many copyrighted works exist in formats inaccessible to individuals with disabilities. This inaccessibility is problematic, as many countries have passed laws that support equal societal participation for individuals with disabilities. Access to copyrighted content for individuals with disabilities generally requires some type of assistive technology that transforms some or all of the content of the work from one medium to another. However, these transformations can implicate the exclusive rights granted to copyright and related rights holders.

The Limits of International Copyright Exceptions for Developing Countries

[Ruth Okediji] Abstract: Development indicators in many developing and least-developed countries reflect poorly in precisely the areas that are most closely associated with copyright law’s objectives, such as promoting democratic governance, facilitating a robust marketplace of ideas, fostering domestic markets in cultural goods, and improving access to knowledge. Moreover, evidence suggests that copyright law has not been critical to the business models of the creative sectors in leading emerging markets. These outcomes indicate that the current configuration of limitations and exceptions (L&Es) in international copyright law has not advanced the human welfare goals that animate its leading justifications in developing countries.

The Changing Academic Publishing Industry: Implications for Academic Institutions

[Scholarly Publishing and Academic Resources Coalition] Academic publishing is undergoing a major transition as some of its leaders are moving from a content-provision to a data analytics business. This is evidenced by a change in the product mix that they are selling across higher education institutions, which is expanding beyond journals and textbooks to include research assessment systems, productivity tools, online learning management systems – complex infrastructure that is critical to conducting the end-to-end business of the university... Data about students, faculty, research outputs, institutional productivity, and more has, potentially, enormous competitive value. It represents a potential multi-billion-dollar market (perhaps multi-trillion, when the value of intellectual property is factored in), but its capture and use could significantly reduce institutions’ and scholars’ rights to their data and related intellectual property.

Patent Pooling In Public Health

[Esteban Burrone] Abstract: In recent years, patent pooling has emerged as a mechanism to address some of the innovation and access challenges relating to health technologies. While patent pools have existed for several decades in other fields of technology, it is a relatively new concept in the biomedical and public health fields, where it has been adapted to pursue public health objectives. The patent pooling model represents a new type of public–private partnership (PPP) in health that relies on the licensing of patents on access-oriented terms to enable multiple third parties to develop and/or supply patented health technologies in a given geography. Click here for more.