Papers

Papers

  • Joined: March 4, 2014
  • Articles: 346

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

[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.

Taking Access Seriously

[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.

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

[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.

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

[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.

Australian Copyright Law Impedes the Development of Artificial Intelligence: What Are the Options?

[Rita Matulionyte] Abstract: Artificial Intelligence (AI) is an emerging technology that has a huge potential in contributing to the Australian economy and addressing economic and social problems in society. However, Australian copyright laws are likely to impede the development of AI, and machine learning in particular, by requiring authorization every time when copyrighted content is used in machine learning processes.

One product, many patents: Imperfect intellectual property rights in the pharmaceutical industry

[Charu N. Gupta] Abstract: Economists’ standard notion of intellectual property rights considers a single patent per product, with a clearly defined scope, certain enforcement, and a fixed term of monopoly protection. Yet common across industries are “imperfect” intellectual property rights: More than one patent may cover a single product, with the scope and enforcement of each uncertain, contributing to an indeterminate period of monopoly protection. Using data on the pharmaceutical industry, I systematically document the presence of imperfect intellectual property rights and provide the first evidence on the extent to which they impact competition.

Can scholarly pirate libraries bridge the knowledge access gap? An empirical study on the structural conditions of book piracy in global and European academia.

[Balázs Bodó, Dániel Antal, and Zoltán Puha] Abstract: Library Genesis is one of the oldest and largest illegal scholarly book collections online. Without the authorization of copyright holders, this shadow library hosts and makes more than 2 million scholarly publications, monographs, and textbooks available. This paper analyzes a set of weblogs of one of the Library Genesis mirrors, provided to us by one of the service’s administrators. We reconstruct the social and economic factors that drive the global and European demand for illicit scholarly literature. In particular, we test if lower income regions can compensate for the shortcomings in legal access infrastructures by more intensive use of illicit open resources.

Patent-Related Actions Taken in WTO Members in Response to the COVID-19 Pandemic

[Xiaoping We and Bassam Peter Khazin] Abstract: ... This working paper provides an overview of the patent landscape of medical treatments and technologies related to COVID-19, and of the patent status of two investigational medical treatments: remdesivir and lopinavir/ritonavir. It then presents various patent-related actions taken by legislators, policymakers, industry sectors, and civil society organizations in WTO Members since the outbreak. Furthermore, it elaborates on patent-related policy options provided by the TRIPS Agreement, and WTO Members' national implementation and utilization of these options in their response to the COVID-19 pandemic.

Exceptions as users’ rights in EU copyright law

[Maurizio Borghi] Abstract: The paper explores possible ways of construing copyright exceptions as users’ rights within the EU legal framework. It discusses some basic principles on the legal nature of exceptions, and then focuses more specifically on EU law and the jurisprudence of the Court of Justice of the European Union (CJEU). The paper shows that the CJEU has moved away from a strict interpretation of exceptions as “derogations” to general principles of copyright protection, towards recognition of exceptions as bearing autonomous legal status.

Unscrewing the Future: The Right to Repair and Circumvention of Software TPMs in the EU

[Anthony Rosborough] Abstract: This analysis examines the impact of software technological protection measures (“TPMs”) in the European Union which inhibit the repair and maintenance of products. Using John Deere tractors as a case study, this analysis addresses the growing number of products which incorporate computerization and TPM-protected software into their design and function. In utilizing software integration and TPMs, many product designs now allow manufacturers to retain considerable control over the manner of repair and choice of technician. In response, consumers and lawmakers are calling for legal reforms to make self-repair and servicing easier. Both the competition law and moral implications of this residual control held by manufacturers are examined in this analysis.

European Copyright and Human Rights in the Digital Sphere

[Christina Angelopoulos] Abstract: For a long time, copyright and human rights took little account of each other. The emergence of digital technology, however, has forced a more intimate interaction. This interaction raises questions about both the nature of copyright and its relationship with other interests: is copyright a human right and, if so, how can clashes with other human rights be resolved? In the European context, the answer to the first question has so far been ‘yes’, raising the stakes as to the second. Both the CJEU and ECtHR have approached the matter as one requiring a ‘balance’.

A Taxonomy of Training Data: Disentangling the Mismatched Rights, Remedies, and Rationales for Restricting Machine Learning

[Benjamin Sobel] Abstract: This chapter addresses a crucial problem in artificial intelligence: many applications of machine learning depend on unauthorized uses of copyrighted data. Scholars and lawmakers often articulate this problem as a deficiency in copyright’s exceptions and limitations, reasoning that legal uncertainties surrounding today’s AI stem from the lack of a clear exception or limitation, and that such an exception or limitation could resolve the current predicament. In fact, the current predicament is a product of two systemic features of the copyright regime — the absence of formalities and the low threshold of copyright-able originality — combined with a technological environment that turns routine activities into acts of authorship. Equilibrating the economy for human expression in the AI age requires a solution that focuses not only on exceptions to existing copyrights, but also on the aforementioned doctrinal features that determine the ownership and scope of copyright entitlements at their inception.