[Joel Lexchin] Abstract: Biologics are currently protected from competition by eight years of data protection. The renegotiated North American Free Trade Agreement (NAFTA) increases data protection from 8 to 10 years. This study investigates the effect of such an extension on drug spending in Canada.
[W. Nicholson Price] Abstract: Patent law tries to spur the development of new, better, innovative technology. But it focuses much more on “new” than “better” — and it turns out that “new” carries real social costs. I argue that patent law promotes innovation that diverges from existing technology, either a little (what I call “differentiating innovation”) or a lot (“exploring innovation”), at the expense of innovation that tells us more about existing technology (“deepening innovation”). Patent law’s focus on newness is unsurprising, and fits within a well-told narrative of innovative diversity accompanied by market selection of the best technologies. Unfortunately, innovative diversity brings not only the potential benefits of technological advances, but also costs: incompatibility between different technologies; a spread-out, shallow pool of knowledge; and the underlying costs of developing parallel technologies that aren’t actually better. These costs matter.
[Daryl Lim] Abstract: ... AI can make a difference in accelerating disruptive innovation by bringing a data-driven approach to invention and creation. To do so, the law must embrace change and innovation as an imperative in a journey towards an ever-shifting horizon. AI both enables and challenges how we reward individuals whose ingenuity, industry, and determination overcame the frailty of the human condition to offer us inventions that make our lives more efficient and pleasurable. It will take a clear-eyed view to ensure that copyright and patent laws do not impede the very progress they were designed to promote.
[Rebecca Giblin] Abstract: The Berne/TRIPS treaty pairing locks most of the world into outdated and effectively unamendable copyright structures. But members don't have to comply with the treaties when it comes to their own nationals. In this paper, I argue that the future of international copyright might involve taking the 'front door out' - domestically departing from Berne/TRIPS minima to implement reforms that would reclaim currently lost value for authors and simultaneously improve access to knowledge and culture.
[Martin Senftleben] Abstract: The new EU Directive on Copyright in the Digital Single Market creates a peculiar triangle of obligations to license, filter and privilege user-generated content (UGC). As it abolishes the traditional safe harbour for hosting in the case of copyrighted content, it may lead to the disappearance of the open, participative internet which EU citizens currently enjoy. To avoid the loss of open, democratic avenues for online content creation, national lawmakers will have to find the right amalgam of licensing and filtering obligations on the one hand, and new use privileges that offer room for user-generated content without prior authorization on the other.
[Frederick Abbott] Abstract: During the past year various members of the United States Congress have introduced legislation intended to ameliorate the high cost of pharmaceuticals, as well as to stimulate innovation using alternative mechanisms to the traditional patent system model. Several of the legislative proposals would authorize third-party importation of prescription pharmaceutical products from one or more countries. One issue considered by drafters of these legislative proposals was whether to include amendment of the United States Patent Act to authorize importation of pharmaceutical products first put on the market under the authority of the patent owner outside the United States. In other words, whether to provide for international exhaustion of patent rights, at least as to pharmaceutical products.
[Rebecca Giblin, Jenny Kennedy, Charlotte Pelletier, Julian Thomas, Kimberlee G. Weatherall and Francois Petitjean] Abstract: We investigated the relative availability of e-books to libraries for e-lending in five English-language countries, and analysed their licence terms and prices. ... Price and licence differences across countries are largely attributable to ‘Big 5’ publishers. Prices are largely independent of title age (unless the title is in the public domain) or the rights libraries obtain in exchange. Licence terms are not affected by age either, meaning that the most restrictive terms are often applied to older, less demanded books.
[James Damian Hakert] Abstract: ... NAFTA allowing pharmaceutical companies to successfully dispute national patent laws could have significant future consequences. This note outlines the circumstances surrounding Lilly’s dispute, analyzes the dispute’s viability, and explores various potential implications of the dispute going forward.
[Matthew Sag] Abstract: Individually and collectively, copyrighted works have the potential to generate information that goes far beyond what their individual authors expressed or intended. Various methods of computational and statistical analysis of text — usually referred to as text data mining (“TDM”) or just text mining — can unlock that information. However, because almost every use of TDM involves making copies of the text to be mined, the legality of that copying has become a fraught issue in copyright law in United States and around the world.
[Daniel Jongsma] Abstract: This paper discusses three recent Opinions by Advocate General Szpunar of the CJEU, all touching upon the relationship between copyright and fundamental rights. It discusses several problematic elements in the AG’s approach. In dealing with questions regarding the scope of the reproduction right and the quotation exception, his over-reliance on textual arguments leads to expansive copyright protection. The arguable negative impact this has on the fundamental rights of others, and with it the question whether this interpretation strikes a “fair balance”, is largely ignored. Regarding the question whether fundamental rights can act as external constraints on copyright, the AG ultimately fails to develop a coherent framework suitable for use in future cases.
[Muhammad Masum Billah] Abstract: Through the first sale doctrine, copyright laws around the world establish for an owner of the copy of a copyrighted work the right to resell, lend, donate, and, in some cases, even to rent the copy. Under the doctrine, the copyright holder loses any control over the future distribution of a copy of the work after the sale of that copy. The purchaser of the copy is free to treat it like any other property she possesses. She can transfer it to anyone else through a resale or donation. The doctrine is part of the balance copyright law strikes between the interests of copyright holders and those of purchasers of the copies. While the right still exists in law, in most digital works copyright holders and their distributors deprive purchasers of this right through digital right management (DRM) technologies and contractual terms. By establishing the continued justifications of this right in the context of digital works, the paper argues for its preservation and recommends for necessary legislative changes to guarantee the application of the first sale doctrine to digital works.
[Ralph D. Clifford] In the late 1990s and early 2000s, I wrote two articles on the consequences of using computer-based creativity to create works later claimed for copyright or patent protection... The basic conclusion of these articles was that substituting artificial intelligence technology [“A.I.”] for human creativity results in works that are in the public domain. This essay... reexamines the area after a gap of almost fifteen years.