Category Academic Resources

The Civil Rights Challenge to Gene Patenting

[Jorge Contreras] In 2009, the American Civil Liberties Union (ACLU) launched a unique lawsuit against Myriad Genetics, challenging fifteen claims of seven patents covering various aspects of the BRCA1/2 genes and their use in diagnosing risk for breast and ovarian cancer. In mounting this case, the ACLU assembled a coalition of lawyers, scientists, counselors, patients and advocates in an unprecedented challenge not only to one company’s patents, but the entire practice of gene patenting in America. And, against the odds, they won. In 2013, the U.S. Supreme Court ruled in Association for Molecular Pathology v. Myriad Genetics that naturally occurring DNA sequences are not patentable, a ruling that has had repercussions throughout the scientific community and the biotechnology industry.

Readability, Accessibility, and Clarity: An Analysis of DMCA Repeat Infringer Policies

[Amanda Reid] Abstract: Internet access is an essential service in the digital age, and internet service providers (ISPs) are a powerful choke point in the digital ecosystem. The Digital Millennium Copyright Act (DMCA) offers statutory safe harbor protection from copyright liability on the condition that an online service provider (1) adopts, (2) informs subscribers of, and (3) enforces a policy to terminate repeat infringers, in appropriate circumstances. This study examines the second condition, namely how well an ISP informs subscribers of its repeat infringer policy. Other research has analyzed platform policies, like privacy policies and end user license agreements. However, there has been no systematic analysis of ISP repeat infringer policies.

US-China Intellectual Property Trade Wars

[Peter Yu] Abstract: More than two decades ago, the literature on the Chinese intellectual property system was filled with commentaries on the trade threats exchanged between the United States and China in relation to the inadequate protection and enforcement of  intellectual  property rights in the latter. At that time, China has not yet joined the World Trade Organization. In the past few years, we once again have been confronted with multiple rounds of trade threats—this time as part of a trade war, which has thus far involved tariffs on close to $750 billion worth of goods. Although the current U.S.-China trade war implicates many items ranging from agricultural produce to electronic goods to financial services, inadequate protection and enforcement of  intellectual property rights in China remains one of the few oft-cited justifications.

Innovation and Balance: Submission to the Government of Canada’s Consultation on Copyright, AI, and IoT

[Liwah Keller and Yuan Stevens] CIPPIC is a public interest clinic that specializes in technology law. Our goal is to advocate in the public interest for policy that promotes innovation, encourages respect for human rights, and responds to the needs of the wider public. These principles underlie the following recommendations that we offer in this submission: 1. Refrain from introducing laws that attribute authorship to AI or determine how authorship should be assigned for AI-assisted works until there is a clear and pressing need... 2. Develop a cohesive approach to liability for infringing activities that involve the use of an AI and provide an exception or safe harbour for text and data mining (“TDM”) within certain parameters... 3. Amend the prohibition on TPM circumvention to allow circumvention for uses that do not infringe upon copyright and expand the current exceptions to the prohibition.

Strong Intellectual Property Protection, Weak Competition Rules – or the Other Way Around to Accelerate Technology Transfer to the Global South?

[Klaus Beiter] Competition law provisions relating to intellectual property (IP) rights should play an enhanced role in facilitating the domestic and international transfer and dissemination of technology. IP-related competition rules in the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) create an obligation for Member States to apply competition law in the IP context. TRIPS competition rules should be read in a “prodevelopment” fashion – IP rights need to be read reductively, IP-related competition law expansively. Ten considerations for a “prodevelopment” IP-related competition law are formulated.

Introducing the Copyright Anxiety Scale

[Amanda Wakaruk, Céline Gareau-Brennan and Matthew Pietrosanu] Abstract: Navigating copyright issues can be frustrating to the point of causing anxiety, potentially discouraging or inhibiting legitimate uses of copyright-protected materials. A lack of data about the extent and impact of these phenomena, known as copyright anxiety and copyright chill, respectively, motivated the authors to create the Copyright Anxiety Scale (CAS). This article provides an overview of the CAS’s development and validity testing. Results of an initial survey deployment drawing from a broad cross-section of respondents living in Canada and the United States (n = 521) establishes that the phenomenon of copyright anxiety is prevalent and likely associated with copyright chill.

An Empirical Review of the Copyright Limitations and Exceptions for Educational Activities

[Daniel Kiat Boon Seng] Abstract: International copyright instruments allow member states of WIPO to make various education-related limitations and exceptions to copyright. To better inform international policy-making in this area, it is instructive to examine how various member states have, in their national copyright legislation, enabled the use of works for education, given the nature and breadth of modern-day education. This paper categorises education-related limitations and exceptions in the legislation of member states into eight categories

Restructuring the Global Vaccine Industry

[Felix Lobo] The purpose of this report is to analyse the vaccines industry under the focus of Industrial Economics as an input for the design of the pertinent instruments to promote development, manufacturing and distribution of vaccines against SARS-CoV-2 in sufficient amounts to immunize all countries as soon as possible. We also need to be prepared for future emerging infectious diseases with the potential of global expansion.

Copyright as a Barrier to Music Therapy Telehealth Interventions: Qualitative Interview Study

populations. A therapist who plays music in a private room for a patient is not subject to copyright restrictions. However, in the wake up of the COVID-19 pandemic, music therapy is no longer strictly confined to the face-to-face setting. The present study explores music therapists’ perceptions of copyright law with respect to their ability to provide mediated services to their clients.

Repairing Medical Equipment in Times of Pandemic

[Ofer Tur-Sinai and Leah Chan Grinvald] Abstract: The COVID-19 pandemic that has gripped the world since early 2020 has underscored the need for an effective right to repair medical equipment. As healthcare systems have been pushed to the limit, keeping critical medical equipment (such as ventilators) in working order has become a matter of life and death. Unfortunately, the ability of hospitals and other health care providers to service and fix their medical equipment is often hindered by the tight control that original equipment manufacturers keep over repair of their products. On top of direct contractual restrictions on repair, one of the major difficulties encountered by hospital-based and third-party service providers is the lack of access to service manuals, service keys, schematics, replacement parts, and repair tools. The ability to block access to these critical items is abetted, in large part, by intellectual property laws.

A deeper look into the EU Text and Data Mining exceptions: Harmonisation, data ownership, and the future of technology

[Thomas Margoni and Martin Kretschmer, Martin] Abstract: There is global attention on new data analytic methods. Data scraping (a typical first step for advanced data analytics), text and data mining (TDM, the extraction of knowledge from data) and machine learning (ML, often also simply referred to as Artificial Intelligence or AI) are seen as critical technologies. The legal issues involved in the regulation of data range from privacy and data protection (such as the GDPR) to proprietary approaches (such as copyright, database rights, or proposed new rights in data themselves). This paper focusses on one specific intervention, the introduction of two exceptions for text and data mining in the Directive on Copyright in the Digital Single Market (CDSM). Art. 3 is a mandatory exception for text and data mining (TDM) for the purposes of scientific research; Art. 4 permits text and data mining by anyone but with rightsholders able to “contract-out” (Art. 4), for example preventing TDM use of publicly available online content by “machine-readable means”. Click here for more.

Promotion of TRIPS-Plus Intellectual Property Provisions Through the Special 301 Review: How Did It Change During the COVID-19 Pandemic?

[Mike Palmedo] This post introduces my chapter the Special 301 Report in the newly-published book Intellectual Property and Access to Medicines.  The chapter, titled “Unilateral Norm Setting Using Special 301” focuses on Special 301 listings from 2009 to 2020 related to intellectual property policies that can be used to access generic medicines. This post will also describe the Special 301 listings in the 2021 Special 301 Report, which was released after the Covid-19 pandemic had taken hold. There were some differences in the 2021 Report pertaining to specific TRIPS flexibilities useful in the fight against Covid-19. However, much of the 2021 Report was similar to the reports released before the pandemic – the Report still criticized countries for policies that could help the fight against Covid-19.