Papers

Papers

  • Joined: March 4, 2014
  • Articles: 346

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

[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.

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

[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.

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

[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.

Exhaustion in the Service of Progress

[Ofer Tur-Sinai] This Article examines the immensely valuable but underexplored role that the exhaustion doctrine could play in the context of cumulative innovation. Research and development efforts often involve the need to use earlier patented inventions. Unfortunately, licensing transactions between cumulative inventors are characterized by particularly high transaction costs and other factors that may impede the ability of the parties to reach an agreement. As a result, the patent system may end up stifling technological progress rather than promoting it. This Article demonstrates that this concern may be mitigated by the Lexmark decision. The patent exhaustion doctrine, as construed by the Supreme Court, could constitute an effective policy tool for facilitating cumulative innovation in a variety of settings.

The Exception for Text and Data Mining (TDM) in the Proposed Directive on Copyright in the Digital Single Market – Legal Aspects

[Christophe Geiger, Giancarlo Frosio and Oleksandr Bulayenko] This research paper reproduces the study commissioned to CEIPI by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the Committee on Legal Affairs (JURI-Committee). It provides an analysis of the European Commission’s Proposal to introduce in Article 3 a mandatory exception to copyright allowing to carrying out text and data mining of protected works, assesses its positive and negative impacts and provides some suggestions for possible improvements. Advantages of introducing an “open clause” in EU copyright law on top of an enumerated list of limitations and exceptions to address some of the related problems are also reviewed.

Communia Association: Our study “Educational Licences in Europe” is out now

[Teresa Nobre] The European Union is coming closer to approving a mandatory educational exception that may address some of the limitations copyright law places on everyday educational activities. However, the current proposal for a Directive on Copyright in the Digital Single Market would allow licences that are easily available in the market to take precedence over the educational exception. Our new report “Educational Licences in Europe“, covering the analysis of 10 agreements in Finland, France, and the United Kingdom, shows that educational licences contain terms and conditions disadvantageous to schools:

Intellectual Property Use in Middle Income Countries: The Case of Chile

Authors: Carsten Fink, Bronwyn Hall and Christian Helmers. Abstract: We analyze the use of intellectual property (IP) by firms in Chile over the decade 1995-2005 as the then middle-income country experienced rapid economic growth of 4.7 percent per year. We use a novel dataset that contains a combination of detailed firm-level information from the annual manufacturing census, information on firms’ innovative activities from Chile’s innovation surveys, and firms’ patent, industrial design, and trademark filings with the Chilean IP office.

Displacing the Dominance of the Three-Step Test: The Role of Global, Mandatory Fair Use

[Tanya Aplin and Lionel Bently] Abstract: Article 10(1) of the Berne Convention mandates a quotation exception that is broad in scope, one that is not limited by work, nor type of act, nor by purpose, and is only subject to the conditions in Article 10, namely, the work has been lawfully made available to the public, attribution, fair practice, and proportionality. We call this “global, mandatory fair use”. This overlooked norm in international copyright law is unaffected by and distinct from the three-step test and, as such, potentially dislodges its dominance. In turn, this creates different possibilities for how to conceive of and assess copyright exceptions at national level.

Re:Create Report – Unlocking the Gates: America’s New Creative Economy

[Re:Create] Over the span of just two decades, the internet has unlocked the gates to the new creative economy, empowering nearly 15 million Americans to create their own content and earn billions of dollars in revenues from posting online. Internet platforms like Amazon Publishing, Instagram, Etsy and YouTube have been driving forces behind the growth and expansion of the dynamic, multibillion-dollar new creative economy... An estimated 14.8 million Americans used the following nine platforms in 2016 to earn income from their independent, personal creations. These independent creators earned an estimated $5.9 billion in 2016 from their creations.

Intellectual Property Policies for Solar Geoengineering

[Jesse Reynolds, Jorge Contreras and Joshua Sarnoff] Abstract: Governance of solar geoengineering is important and challenging, with particular concern arising from commercial actors’ involvement. Policies relating to intellectual property, including patents and trade secrets, and to data access will shape private actors’ behavior and regulate access to data and technologies. There has been little careful consideration of the possible roles of and interrelationships among commercial actors, intellectual property, and intellectual property policy.

Behind the Number: A Review of Index Methodologies to Improve Innovation Measurement in Africa

[Islam Hassouna] Abstract: This paper reviews the methodologies of 16 indices in innovation, information and communication technologies, economic environment, governance, and development. It looks at the different techniques used by these indicators to aggregate data into a single number. The paper presents index structure, data, weighing of indicators, assessment, and ends with a focus on the measurement of innovation in the reviewed indices.

Japan’s Emerging Role in the Global Pharmaceutical Intellectual Property Regime: A Tale of Two Trade Agreements

Authors: Belinda Townsend, Deborah Gleeson and Ruth Lopert. Abstract: This paper explores Japan’s role in reshaping the global pharmaceutical intellectual property regime by examining its position on the expansion of intellectual property rights (IPR) in negotiations for two regional trade agreements: the Trans Pacific Partnership Agreement (TPP) and the Regional Comprehensive Economic Partnership (RCEP). Through systematic analysis of leaked negotiating texts documenting its positions on key issues, we demonstrate Japan is now playing a pivotal role in promoting the adoption of expanded IPRs.