Category Academic Resources

From Berne Convention History: Germany’s Stand on Copyright Limitations & Exceptions for Scientific and Educational Purposes

[Lokesh Vyas] During the initial meetings of the Berne Convention, Germany was very vocal about the rights of users and even proposed a separate right to use copyrighted works for education and scientific purposes without author’s consent. This proposal came through a questionnaire proposed by Germany on September 9th, 1884 meeting of the Convention wherein it used the term reciprocal right for using the copyrighted works for education and scientific purposes. This was later included in the draft as Article 8 named “Lawful reproduction of protected works in scientific or educational works”.

Research Exceptions in Comparative Copyright

[Sean Flynn, Luca Schirru, Michael Palmedo, and Andrés Izquierdo] Abstract: This Article categorizes the world’s copyright laws according to the degree to which they provide exceptions to copyright exclusivity for research uses. We classify countries based on the degree to which they have a research exception in their law that is sufficiently open to be able to permit reproduction and communications of copyrighted work needed for academic (i.e. non-commercial) text and data mining (TDM) research. We show that nearly every copyright law has at least one exception that promotes uses for research purposes. We find six different approaches to the provision of research exceptions that implicate application to TDM.

19 Vaccines as Global Public Goods: Between Life and Profit

[Katiuska King Mantilla and César Carranza Barona] Abstract: In the context of a health emergency like the COVID-19 pandemic, the global availability of and access to vaccines are imperative. This research paper provides an analysis from the perspective of international political economy, of the financing of COVID-19 vaccines and of the market strategies adopted by some of the companies that developed them. It notes that the development of vaccines was supported by substantial public funding from countries that later received preferential access to those vaccines through advance purchases. Despite such public support, the vaccines were not deemed as public goods but remained under the control of their developers.

Patent Law and 3D Printing Applications in Response to COVID-19: Exceptions to Inventor Rights

[Muhammad Zaheer Abbas] Abstract: ... This paper examines the issue of patent rights being at odds with access to critical 3D printable health technologies during COVID-19 crisis. It undertakes an in-depth analysis of the right to repair and calls for a clearer recognition of the right to repair exemption at the global level. It also evaluates the private and non-commercial use exception and proposes the use of a reasonably broad form of this exception to make it practically significant. It also considers the experimental use exception and calls upon WTO Member States to provide legislative clarity that a defence of an experimental use extends to repairs.

A Study of Patent Thickets

[Bronwyn H. Hall, Christian Helmers, Georg von Graevenitz and Chiara Rosazza Bondibene] Executive Summary: This report analyses whether entry of UK enterprises into patenting in a technology area is affected by patent thickets in the technology area. The aim is to contribute to our understanding of the role of patent thickets as a barrier to entry into new technologies for UK enterprises, in particular small and medium sized enterprises (SMEs). The report consists of several parts: 1) a review of the literature on patent thickets, including the limited empirical evidence regarding effects of patent thickets on R&D investments and competition; 2) discussion of the factors contributing to thicket formation and growth; 3) an empirical evaluation of the extent to which patent thickets appear to be barriers to entry in some technology areas.

What Is the Impact of Intellectual Property Rules on Access to Medicines? A Systematic Review

[Brigitte Tenni, Hazel V. J. Moir, Belinda Townsend, Burcu Kilic, Anne‑Maree Farrell, Tessa Keegel and Deborah Gleeson] Abstract: It is widely accepted that intellectual property legal requirements such as patents and data exclusivity can affect access to medicines, but to date there has not been a comprehensive review of the empirical evidence on this topic. The World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) requires Member States to implement minimum standards of intellectual property protection including patents for pharmaceutical products, but also contains ‘flexibilities’ designed to address barriers to access to medicines. National intellectual property laws can also include TRIPS-plus rules that go beyond what is required by TRIPS. We aimed to systematically review literature that measures the impact of intellectual property rules on access to medicines, whether implemented as a result of TRIPS, TRIPS-plus provisions in other trade agreements, or unilateral policy decisions.

Letter to Canadian Ministers Regarding Proposed Amendments to Copyright Law on Term of Protection and Education Exceptions

[Jointly signed by 25 Canadian IP scholars] As a group of Canadian Intellectual Property Law scholars, we write to express our deep concern regarding the reference in the 2022 Federal Budget to amendments to the Copyright Act. We strongly urge you to exclude the contemplated amendments to the Copyright Act from any Budget Implementation Bill and ensure that their enactment would follow the ordinary legislative process.

Biological Patent Thickets and Delayed Access to Biosimilars, An American Problem

[Rachel Moodie and Bernard Chao] Abstract: Drug prices in the United States are higher than in other countries. Generic drugs offer one path to lower these prices. The Biologics Price Competition and Innovation Act ('BPCIA') was passed in 2010 to promote the entry of biosimilars, generic versions of a new class of biologic drugs. These drugs have proven to be effective at treating a variety of illnesses including various autoimmune diseases and cancers. But to date, few biosimilars have entered the U.S. market. Patent thickets covering biologic drugs may be one cause. Our study seeks to test this hypothesis by comparing patent assertions against the same biosimilar drugs in the United States, United Kingdom and Canada.

Copyright and Digital Teaching Exceptions in the EU: Legislative Developments and Implementation Models of Art. 5 CDSM Directive

[Giulia Priora, Bernd Justin Jütte & Péter Mezei] Abstract: Article 5 of the 2019 EU Directive on Copyright in the Digital Single Market (CDSM) attempted to modernize the regime of copyright exceptions and limitations related to teaching activities. Its aim is to enhance the flexibility behind permitted uses to the benefit of educational institutions regarding their digital and cross-border teaching. The pressing need for such a legislative reform was confirmed by the outbreak of the COVID-19 pandemic, which dramatically moved teaching environments to online platforms.

Reverse Payment: A Comparative Study

[Garry Gabison and Zaakir Tameez] Abstract: This Article compares reverse payment settlements, also known as pay-for-delay deals, in the United States and Europe. These deals occur where a branded drug manufacturer sues, settles with, and pays a generic manufacturer to delay the entry of its generic. Unlike the United States, which has a decentralized drug purchasing system, European healthcare systems such as those in France and the United Kingdom wield monopsony buying power over drugs. We investigate whether regulator and monopsony power can neutralize these anticompetitive agreements.

Fahrenheit 2020: Torching the Internet’s Library of Alexandria at the Height of a Global Pandemic

[Stephen Beemsterboer] Abstract: For more than a decade, the Internet Archive has been collecting and digitizing books as part of its “Open Library” project. The unofficial e-books are made available to the public under a legally untested concept called “controlled digital lending” (CDL), premised on the notion that libraries should be able to lend their books online in much the same way that they do in person. Under the theory, a library may grant restricted digital access to one patron at a time per physically held copy of a book. Once a patron’s access to the book ends, another’s may begin. The process is meant to digitally replicate a physical library loan, and it works just like borrowing an official e-book through a local library.

Forfeiting IP

[Deepa Varadarajan] Abstract: Can intellectual property (IP) rights be lost? Much attention has been paid to how IP rights are acquired and whether threshold requirements are too laxed or onerous. But surprisingly little attention has been paid to the question of IP forfeiture. That is, once IP rights are acquired, what—if anything—do owners have to do to keep those rights or risk losing them forever. The answer, it turns out, varies widely across the IP landscape and has important consequences for follow-on innovation, competition, and the public domain.