Category Domestic Policy

Big Win: White House OSTP Releases New Guidance on Access to Federally Funded Research

[PIJIP] The White House Office of Science & Technology Policy (OSTP) issued an updated memorandum updating the 2013 White House OSTP Memorandum on Public Access to Publicly Funded Research Results to make “articles resulting from all U.S. federally funded research freely available and publicly accessible by default in agency-designated repositories without any embargo or delay after publication.”  It eliminates the 12-month embargo and makes articles—and the underlying data needed to validate results—openly available in machine readable formats.

Competition Law and Intellectual Property: A Study Drawing from The Eli Lilly Case on ‘Sham Litigation’ in Brazil

[Pablo Leurquin] Competition authorities may be the best equipped institutions to penalize certain illicit practices that involve intellectual property rights. This article analyzes the decision by the Brazilian Administrative Council for Economic Defense (Conselho Administrativo de Defesa Econômica – CADE) in the Eli Lilly case, in which the company was convicted for abusive use of the right to petition (sham litigation) with anti-competitive effects. It examines general aspects of technological dependence in the Brazilian pharmaceutical industry, presents the legal premises necessary for the understanding of the decision made by the competition authority, and analyzes the legal grounds for the sanction imposed on Eli Lilly.

Study on EU Copyright and Related Rights and Access To and Reuse of Data

[Martin Senftleben] Executive Summary: To safeguard freedom of expression and information, and the freedom of sciences, of researchers,[1] it is important to improve the legal framework for scientific research in copyright, related rights and sui generis database law. In particular, it is important to remove imbalances that pose obstacles to data access and reuse. Article 5(3)(a) of the Information Society Directive could serve as a reference point for this legislative step.

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.

Farmers, Seeds & the Laws: Importing the Chilling Effect Doctrine

[Saurav Ghimire] As an increasing number of countries are formulating Plant Variety Protection (PVP) laws, a growing number of farmers are affected by plant breeders’ rights. In addition, the seed certification law also affects farmers’ relations with seeds. Discussing the farmers’ interaction with the PVP law and seed certification law in Indonesia, this article establishes that the farmers have internalised the law beyond the scope of the legal text, such that they self-limit breeding, saving, and exchanging of seeds even in legally permissible situations. Based on the chilling effect doctrine, this article argues that the related laws should be relaxed to ensure that they do not over deter farmers from exercising their rights. This article calls for both negative and positive state obligations to address the chilling effect on farmers arising from both state and private actors.

100 Members of Congress Write Biden Administration Urging Compulsory Licenses for Drugs Produced with Taxpayer Funding

[Mike Palmedo] A group of 100 Members of Congress led by Sen. Elizabeth Warren and Rep. Lloyd Doggett has sent a letter to DHHS Secretary Xavier Becerra, asking him to take actions to lower U.S. drug prices. The letter specifically asks him to "utilize administrative authorities, including government patent use compulsory licensing under 28 U.S.C. 1498 and march-in and royalty-free rights under the Bayh-Dole Act." These actions would introduce generic and biosimilar competition for drugs developed with U.S.-taxpayer funding.

20 New Copyright Policy Recommendations

[Communia Association] This page lists the 20 policy recommendations launched in May 2022. These supersede the 14 policy recommendations that we published in 2011 and that we evaluated in 2021. The policy recommendations have been developed though a consultation process that gathered input from more than 60 academics, activists and other experts that ran from late 2021 to early 2022. This process was made possible though a generous donation by Pam Samuelson and Bob Glushko. Our policy recommendations concern themselves with measures to defend and expand the public domain, measures that protect and promote usage rights, measures to empower creators and their audiences and measures that create safeguards against copyright abuse.

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.

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).

Bulgaria Falls Into All the Traps Set by Article 5 of the CDSM Directive

[Ana Lazarova] Abstract: With Article 5 of the CDSM Directive, the EU legislator aspired to remedy the inherited legal fragmentation in the area of copyright exceptions and limitations, by introducing a mandatory exception for the purpose of ‘illustration for teaching’ in the digital environment. Bulgaria already had an educational exception as per the InfoSoc Directive, which was rather broad, technology neutral and unrestricted in terms of its beneficiaries. Now, the ‘digital’ exception under Article 5 is being transposed in parallel with the pre-existing one, both provisions largely overlapping in scope and with no clear collision norms available. This is yet another national implementation showing that the new exception, initially envisaged as a mandatory minimum of user rights protection, would likely exacerbate, instead of remedy the fragmented legal landscape in the EU. It would appear that the regime under Article 5 may come to do a disservice to free use for educational purposes.

An Examination of Selected Public Health Exceptions in Asian Patent Laws

[Kiyoshi Adachi] This study examines the variations within Asia of two exceptions to patent rights that are commonly justified under Article 30 of the World Trade Organization (WTO) Agreement on Trade-related Aspects of Intellectual Property Rights (the TRIPS Agreement), namely the research and experimentation exception and the regulatory review (or “Bolar”) exception. Both these exceptions are important in the context of the 2001 Doha Declaration on the TRIPS Agreement and Public Health insofar as they are designed to provide flexibility to protect public health and support countries’ overall scientific and technological aspirations. The study examines, from a comparative perspective, examples of these respective exceptions in patent legislation in South, Southeast and East Asia, and identifies peculiarities in the variations among countries in these sub-regions.

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.