Category Academic Resources

IP Reveries – An Introduction & Class 1 – IPR: A Tantalising Term or Troubling Terminology?

[Lokesh Vyas and Swaraj Paul Barooah] Intellectual Property Rights – a fascinating ‘subject’ that inadvertently touches upon so many aspects of our day to day life, whether we’re conscious of it or not. A few decades ago, even most lawyers wouldn’t have been able to clearly explain what a patent is. Fast forward to today, and while there’s still plenty of misunderstanding – patents, copyrights, trademarks, inventions, innovations, 4th industrial revolution, etc have all become buzzwords! Simultaneously, the ever growing division between “pro-IP” and “anti-IP” people have polarised views to such a large extent that it has become increasingly difficult to question another’s position, without being forced into a camp – a theme Shamnad touched upon frequently. Is there space for a genuine discussion around the whats, whys, whens and hows underlying the IP system? For asking questions such as – why does “pro-IP” often get translated to ‘easy grant of patents’ instead of ‘a better IP system’? Is IP a rule or an exception, in a free-market society? What implications do the colonial origins of the IP regime have in a post-colonial world, if any? What type of incentives do people look for, and what trade-offs can we make to give those incentives? What role does IP play in the larger ‘knowledge economy’? And for that matter – where does one even ask these questions? Legal academia desires formal strait-jacketed, peer-reviewed answers, not open-questions, with variable perspective-based answers (especially if they in turn give rise to further questions!). And classrooms often do not have time or mind-space to allow for wandering discussions, when they have a time-bound syllabus to teach. 

The COVID-19 TRIPS Waiver and the WTO Ministerial Decision

[Peter Yu] Abstract: .. This chapter traces the TRIPS waiver debate from the submission of the original proposal by India and South Africa in October 2020 to the final adoption of the Ministerial Decision on the TRIPS Agreement in June 2022. The chapter further evaluates the strengths and weaknesses of this newly adopted decision, comparing it with the earlier TRIPS waiver proposal. It concludes by offering suggestions for future actions that WTO members on both sides of the waiver debate could take to help combat the COVID-19 pandemic.

U.S. Copyright Office Finds That Ancillary Copyright May Violate the Berne Quotation Right

[Jonathan Band] The U.S. Copyright Office’s recently released study Copyright Protections for Press Publishers raises serious questions about the compatibility of ancillary copyright regimes with international copyright treaty obligations. The Copyright Office conducted the study at the request of members of Congress to assess the viability of establishing ancillary copyright protections in the United States similar to protections now being implemented in Europe. Under such regimes, online news aggregators must pay for publishers for excerpts of content they provide for others to view.

IPR-Related Statistics in WTO Trade Policy Reviews

[Peter Lunenborg] The WTO Secretariat Trade Policy Review (TPR) report is an important tool for a WTO Member which synthesizes objective trade-related information in a single document and enables the monitoring of developments in trade. Relevant statistics are therefore an important element of a TPR report. Currently the practice of using statistical information on intellectual property rights (IPRs) across TPRs is not uniform. This Policy Brief surveys the use of IPR-related statistics in WTO TPRs with a view to exploring possible harmonization and inclusion of common information elements in future TPRs.

How Well Did Copyright Laws Serve Libraries During COVID-19?

[International Federation of Library Associations] The report involved a survey of 114 libraries worldwide and 28 interviews during February and March 2022. Respondents were from 29 countries. 83% of responding library professionals said they had copyright-related challenges providing materials during pandemic-related facility closures. These intersected with ongoing challenges predating the pandemic, including budget pressures, external financial crises, difficult negotiations with publishers, and demand for eBooks that outpaces publisher offerings.

Compliance of National TDM Rules with International Copyright Law – An Overrated Nonissue?

[Martin Senftleben] Abstract: ... lawmakers in countries seeking to devise an appropriate TDM regime may wonder whether the adoption of a restrictive approach is necessary in the light of international copyright law. In particular, they may feel obliged to ensure compliance with the three-step test laid down in Article 9(2) of the Berne Convention, Article 13 of the TRIPS Agreement and Article 10 of the WIPO Copyright Treaty. An imbalanced, restrictive interpretation of the three-step test, however, can lead to an overly cautious approach that stifles TDM and makes broad inroads into the right to research – instead of establishing a proper balance between copyright protection and the right to research that supports TDM activities. Against this background, the analysis raises the question whether international copyright law covers TDM activities at all.

Revisiting Canada’s Access to Medicines Regime in Response to COVID-19: A Review of the Legislation and its Underlying Objectives

[Muhammad Zaheer Abbas] Abstract: The current COVID-19 pandemic has highlighted the significance of the export-oriented compulsory licensing mechanism for countries lacking domestic manufacturing capacity. Article 31bis, the first amendment to the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), is aimed at giving effect to the WTO General Council Decision 2003, which waived the domestic market requirement of compulsory licensing. In 2005, Canada became the first country to amend its patent laws to provide for Canada’s Access to Medicines Regime (CAMR) as enabling legislation to implement the WTO General Council Decision 2003. Canada clearly described its regime as a humanitarian initiative aimed at helping developing countries that lack sufficient drug and/or vaccine manufacturing capacity of their own and rely upon imports to address their public health problems. The legislation was compromised, however, by the conflicting desire to protect the corporate interests of patent-holding corporations.

Progress as Impact: A Contemporary View of the Copyright and Patent Clause

[Alina Ng] Abstract: The Constitution grants Congress the power to promote the progress of science and the useful arts through the intellectual property clause. ... This article argues that intellectual property laws need to have a more contemporary understanding of progress, one that reflects the reality and practicality of how progress actually unfolds and shows how construing progress as making an impact on social and economic welfare through entrepreneurial activities may be a more contemporarily appropriate understanding we should strive for.

Intellectual Property Framework Responses to Health Emergencies – Options for Africa

[Fernando dos Santos, Caroline B. Ncube, and Marisella Ouma] Abstract: We debate whether intellectual property (IP) protection of medical products and devices required to prevent, treat and contain COVID-19 should be waived, as proposed by South Africa and India, under the World Trade Organization (WTO)’s Agreement on Trade-related aspects of Intellectual Property Rights (TRIPS Agreement). We discuss existing public policy mechanisms under the TRIPS Agreement and how these have been implemented at national level in Africa, and find that these have proven inadequate and that they have been sub-optimally implemented. We then consider the TRIPS Waiver proposal which has been tabled due to the inadequacy of existing mechanisms and outline the EU’s counter proposal which is founded on existing mechanisms.

Ensuring the Visibility and Accessibility of European Creative Content on the World Market: The Need for Copyright Data Improvement in the Light of New Technologies and the Opportunity Arising from Article 17 of the CDSM Directive

[Martin Senftleben, Thomas Margoni, Daniel Antal, Bodó Balázs, Stef van Gompel, Christian Handke, Martin Kretschmer, Joost Poort, João Quintais, Sebastian Schwemer] Abstract: In the European Strategy for Data (COM(2020) 66 final), the European Commission highlighted the EU’s ambition “to acquire a leading role in the data economy.” At the same time, the Commission conceded that the EU would have to “increase its pools of quality data available for use and re-use.” In the creative industries, this need for enhanced data quality and interoperability is particularly strong (section 1). Without data improvement, unprecedented opportunities for monetising the wide variety of creative content in EU Member States and making this content available for new technologies, such as artificial intelligence (“AI”) systems, will most probably be lost (section 2).