Category Academic Resources

Extraterritoriality: Intellectual Property

[Timothy R. Holbrook] Abstract: Intellectual property rights, particularly patents, copyrights, and trademarks, have been the subject of international treaties for quite some time. Those treaties all treat intellectual property rights as national in nature, with attendant territorial limits. ... For extraterritoriality, that means that the use of one nation’s intellectual property to leverage control over the acts and markets of another have significant implications for sovereignty. These concerns could be vindicated through a robust use of conflicts of law in extraterritorial jurisprudence. The role of conflicts has been, at best, unclear in U.S. law. This chapter suggests, however, that when the conflict is one over the validity within the foreign country, conflict concerns should be at their apex. In other words, why should one jurisdiction allow an IP right holder to leverage a right into a country that would find that right invalid? This dynamic goes beyond merely holding someone liable for acts in a foreign country; it directly undermines the political choices of that sovereign in a far more significant way.

Direct Monetary Costs of Intellectual Property for Developing Countries. A Changing Balance for TRIPS?

[South Centre] It is startling that almost no discussion exists on the direct monetary costs for countries of the IP international regulatory framework. Indeed, on top of the inherent costs on ´access´ or ´learning´ abilities, there are some important tangible, measurable, direct monetary costs to countries. These costs are the financial payments that occur simply for the use of intellectual property. These payments are relevant in any discussion on the role of IP in the context of development. An overview of some findings is presented in this report, with the aim of promoting an assessment and discussion at the WTO and other fora whenever there is a consideration of the impacts of the IP international regulatory framework, notably the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) in individual countries.

Intellectual Property and the African Continental Free Trade Area: Lessons and Recommendations for the IP Protocol

[Caroline B. Ncube] Abstract: This paper aims to explore the contours of the future intellectual property (IP) protocol of the African Continental Free Trade Area (AfCFTA) Agreement... This paper frames the IP protocol within the architecture of the AfCFTA Agreement, meaning that it will follow the structure of other protocols and will be guided by the Agreement’s foundational principles and objectives. With the place, shape and form of the protocol so established, the paper considers the substantive aspects that ought to be addressed. It also considers provisions on technical assistance, capacity building and cooperation.

New Survey on Access Barriers to Text and Data Mining Research

[Patricia Aufderheide] A new survey explores the problems researchers in various sectors experiences in attempting to use text and datamining (TDM), and you can help. TDM is a basic feature of daily digital life, for good and ill. It is what enables search; it drives targeted advertising; it feeds predictive policing; and increasingly for scholars it is a crucial tool to track networked behaviors and identify patterns relevant to their subject disciplines. Those disciplines are as wide-ranging as medicine, political science, engineering, legal studies and communication; for Internet studies, it is routine. But unless you work for a company that generates the data you want to study... it can be tricky to get your hands on the material. Copyright and contracts get in the way; so do terms of service. And library/archive policies. And, of course, lack of knowledge and misinformation. Our survey, offered in English, Portuguese and Spanish, will give us cross-cultural information on what problems researchers encounter, and what they do when they have those problems.

Access To Medicines and Pharmaceutical Patents: Fulfilling The Promise of TRIPS Article 31bis

[Ezinne Miriam Igbokwe and Andrea Tosato] Abstract: ... The most contentious [TRIPS] issue has long been the impact of the TRIPS patents regime on access to medicines. Our Article contributes to this debate by illuminating an oft-overlooked facet of TRIPS: Article 31bis. Enacted following the Doha Declaration of 2001, this provision was designed to enable Members with inadequate manufacturing capabilities to import patented pharmaceuticals produced by generics manufacturers under an export compulsory license (ECL) issued by another Member. Initially welcomed with enthusiasm, ECLs have enjoyed minimal success. We propose an explanation for the current fallow state of Article 31bis and suggest approaches to fulfill its promise.

The Implementation of Art. 17 DSM-Directive in Germany: A Primer with Some Comparative Remarks

[Matthias Leistner] Abstract: The implementation of the DSM-Directive in the European Member States is underway.... In regard to Art. 17, two basic models have emerged. Many Member States, in particular France, closely follow the wording of the Directive with only rather minor differences concerning the legislative technique and certain details, such as the definition of the OCSSPs. By contrast in Germany, the legislator, on the basis of an historic and contextual interpretation as well as interpretation in conformity with fundamental rights, has enacted a different system. Art. 17 is implemented in a balanced way providing for ex ante safeguards during the blocking and stay down procedure for certain contents which are not manifestly infringing (minor contents, user generated contents) and therefore regarded as presumably authorized by law. This effectively amounts to a collectively remunerated notice and delayed takedown system for such presumably legal contents.

The AI-Copyright Challenge: Tech-Neutrality, Authorship, and the Public Interest

[Carys Craig] Abstract: Many of copyright’s core concepts—from authorship and ownership to infringement and fair use—are being challenged by the rapid rise of generative AI. Whether in service of creativity or capital, however, copyright law is perfectly capable of absorbing this latest innovation. More interesting than the doctrinal debates that AI provokes, then, is the opportunity it presents to revisit the purposes of the copyright system in the age of AI.

A TRIPS-COVID Waiver and Overlapping Commitments to Protect Intellectual Property Rights Under International IP and Investment Agreements

[Henning Grosse Ruse-Khan and Federica Paddeu] This paper considers legal implications that are likely to emerge from the implementation of a TRIPS Waiver decision. Assuming that a Waiver is adopted in the form presented in the May 2021 proposal by South Africa and India et al, we review the interaction between the Waiver and other commitments to protect IP rights under international IP and investment treaties. Our principal research question is to analyze whether domestic measures implementing the Waiver are compatible with the implementing State’s other obligations to protect IP rights established under multilateral IP treaties, IP and Investment Chapters of FTAs as well as BITs.

Protection of Copyright and Accessing Education Materials at Low Prices: Finding a Sustainable Solution for Bangladesh

[Mohammad Towhidul Islam and Moniruz Zaman] Abstract: This research article explains the intricate relationship between the copyright law and education and finds out that ‘the rudimentary hurdle’ posed by copyright as depicted in writings of intellectual property scholars like James Boyle is the cost of learning materials compared to the affordability in developing countries and LDCs. It also tries to strike a balance between copyright protection and access to education materials in an LDC like Bangladesh. While outlining the periphery of copyright protection, this article considers the scenario of the Bangladeshi book shops. It largely suggests that a ‘fairness’ model for the copyright landscape of Bangladesh can promote access to education and learning. Finally, this article concludes by illuminating new strategies for accessing education materials at low prices.

Utilising Public Health Flexibilities in the Era of COVID-19: An Analysis of Intellectual Property Regulation in The OAPI and MENA Regions of Africa

[Yousuf A. Vawda and Bonginkosi Shozi] Abstract: The paper explores the unique approaches to IP protection in the countries belonging to the Organisation Africaine de la Propriété Intellectuelle/African Intellectual Property Organization (OAPI) and the Middle East and North Africa (MENA) regions; the limited extent to which legal and policy frameworks with regard to TRIPS flexibilities have been adopted and implemented in pursuit of access to medicines in those countries; and makes recommendations in order to optimise the use of the flexibilities in advancing public health objectives. In the context of the COVID-19 pandemic, the impact of IP rights on access, and some approaches to countering the challenges to access are also discussed.

European Copyright Society Comment on Copyright and the Digital Services Act Proposal

[Alexander Peukert, Martin Husovec, Martin Kretschmer, Péter Mezei and João Quintais] Copyright law accounts for most content removals from online platforms and search engine result lists, by an order of magnitude. This practice will become subject to numerous due diligence obligations under the proposed Regulation on a Single Market For Digital Services (Digital Services Act, DSA), which also covers copyright infringing content. In this Comment, the European Copyright Society (ECS) takes the opportunity to share its view on (1) the relationship between the EU copyright acquis and the DSA and (2) on further selected aspects of the DSA from a copyright perspective.

The proposal for waiver of WTO’s TRIPS Agreement to prevent, contain and treat COVID-19: investigating the benefits and challenges for low- and middle-income countries

[Sanath Wijesinghe, Chaminya Adikari, and Ruwanthika Ariyaratna] Abstract: This article examines the benefits of the TRIPS waiver for low- and middle-income countries with particular reference to the challenges that these countries may face in the manufacturing and purchasing stages of COVID-19 vaccines. We assess arguments for and against the TRIPS waiver and suggest actionable solutions that could be provided by global policy actors to enable low- and middle-income countries to overcome such challenges.